State v Mundi [2024] PGNC 290; N10958 (26 July 2024)

N10958

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1454 & 1456 OF 2023

THE STATE

V

GEE MUNDI & MICHAEL WANPIS OGUK

Minj: Miviri J
2024: 02^nd 15^th 16^th 25^th & 26^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – Death of Deceased By Gunshot – Bullet Passing through First Victim & Injuring Deceased in Chest – Deliberate & Calculated Intent to Kill – Broad Day Light Shooting – Co Prisoner Calling Out Shoot them Kill them – No Hesitation Aiming From 3 to 4 Meters Apart Shooting – First Offenders – Consumption of Alcohol – K50, 000.00 & 20 Pigs Paid Compensation – Protection of Life – Prevalent Offence – shall be sentenced to life imprisonment – Commanding Mandatory Language – Application of Law – No Power Legislating – Strong & Punitive Sentence – Life Imprisonment x2.

Facts
Prisoner responded to his co prisoner urging him to shoot the victim, one shot fired penetrating his shoulder into the neck of the deceased who died as a result. He intended to kill the deceased and did kill him when he fired the gun.

Held
Co Prisoner called out to shoot the deceased.
One gun fired by First Prisoner
Aimed at victim and deceased.
Fired at them
Intent to kill.
Killing.
Protection of Life
Strong Determined Punitive Sentence.
Life Imprisonment x2.

Cases Cited:
Golu v The State [1979] PNGLR 653
State v Koip [2021] PGNC 295; N8986 (21 July 2021).
State v Ambane [2022] PGNC 451; N9993 (22 September 2022).
State v Keake (No 3) [2001] PGNC 117; N2079 (27 February 2001).
John, The State v [1992] PNGLR 524
State v Mongi [2007] PGNC 135; N3259 (12 December 2007).
State v Mark Poroli [2004] PGNC 113; N2655 (25 August 2004).
State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018).
Kovi v The State [2005] PGSC 34; SC789 (31 May 2005).
Kwapena v The State [1978] PNGLR 316
Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004).
Kuanande, The State v [1994] PNGLR 512
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Leslie v The State [1998] PGSC 22; SC560 (7 August 1998).
Allan Peter Utieng v The State SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000).
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020).
Boroko Motors Ltd v Meridian Motors Ltd [2020] PGSC 114; SC2028 (6 November 2020).
State v Soso [2015] PGNC 185; N6082 (21 September 2015)
State v Javopa [2014] PGNC 49; N5579 (17 April 2014)
State v Guna (No. 2) [2024] PGNC 199; N10867 (19 June 2024)

Counsel:
F. Popeu, for the State
R. Mangi, for the Defendant

SENTENCE

26^th July 2024

1. MIVIRI J: Both Gee Mundi of Kandal and Michael Wanpis Oguk of Waghi village, both of Banz, North Waghi, Jiwaka Province now appear after trial for sentence on the conviction each sustained of the wilful murder of one Joel Yambe pursuant to section 299 (1) of the Code.
   
2. This section prescribes the offence in this way including the sentence for breach:
   
   • (1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person intending to cause his death or that of some other person is guilty of wilful murder.
     
   • (2) A person who commits wilful murder shall be sentenced to life imprisonment and is eligible for parole after 30 years.”
     
3. That is clearly commanding language that upon conviction, he shall be liable to be sentenced to life imprisonment and is eligible for parole after 30 years. When glossed in the light of section 35 Right to life under the Constitution it is very pertinent and clear, that “No person shall be deprived of his life intentionally except as sanctioned by law. The will of the people of Papua New Guinea through their elected legislature, Parliament, points that wilful murder is not a light matter. It shall not be taken without due process of law. It is a very serious crime to terminate the life of a fellow human being. Once dead that is the end of him. He will not come back from the grave ever. It is not the same for the prisoners who may sometime in the future return after service of the sentence imposed. The sentence that is imposed enforces the sanctity of life. That all live once only. It is therefore of fundamental importance for the sentence to reinforce that fact. Because like the prisoners the deceased Joel Yambe also came from a family. He too had a wife children and immediate family. His continued life has been terminated no fault of his on this day at the hands of Gee Mundi commanded by Michael Wanpis Oguk. Which is very painful to see that no amount of sentence passed will ever bring his life back to his family. Therefore “Wilful Murder has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why in most jurisdictions it carries a fixed penalty – sometimes death but infrequently life imprisonment” Golu v The State [1979] PNGLR 653.
   
4. And therefore, it will not equate what this court saw in a shooting of a law student by a leader drawing 30 years IHL for murder State v Koip [2021] PGNC 295; N8986 (21 July 2021). In my view it would be erroneous to consider it on that level, because there the intent is to do grievous bodily harm. Which is the case in State v Ambane [2022] PGNC 451; N9993 (22 September 2022) murder that draw a sentence against a group of policemen to 20 years imprisonment. The shooter was not clearly identified in that group. Here the shooter is clearly singled out and the person who gave the orders to shoot and kill is also clearly evidenced out. It means that sentence will not fit what is set by the facts and circumstances here. This is broad day light confirming in clarity that Michael Wanpis Oguk called out shoot them, Kill them. It was responded immediately by Gee Mundi who pointed and took direct aim pointing the barrel of the pistol at the victim and deceased committing the offence. So, 20 years or 30 years will not equate in my view the conduct of the prisoners on this day.
   
5. Nor would it be within the facts of State v Keake (No 3) [2001] PGNC 117; N2079 (27 February 2001) as there is no direct evidence showing out what happened here between the deceased and the prisoners. Michael Wanpis Oguk called out shoot them, shoot them Kill them. To which Gee Mundi responded shooting both Augustine Kongiye and Joel Yambe with that gun at 9.00am at 4 meters apart. It is in my view distinguished by the facts and will not follow that same path in the sentence due. I make the same observation in John, The State v [1992] PNGLR 524 that was an armed robbery in the course of which there was a struggle over the gun that was held by Waiyake Komane who was accompanied by (8) eight others. The gun discharged and both students from Sonoma Adventist College died as a result. It is not a direct calculated act that is depicted out by the Prisoners here. Both their actions are clear as the bright sunny morning that day Sunday 03^rd July 2022. That case is not the same on all its facts and therefore inapplicable for the purposes of determining sentence.
   
6. Both bear direct responsibility for the death of Joel Yambe. Even if both were under the influence of voluntary consumption of alcohol, it does not make any difference in view of State v Mongi [2007] PGNC 135; N3259 (12 December 2007). He was under the influence of voluntary and free consumption of marijuana he assaulted the 7-year-old girl repeatedly over a number of different areas. Finally hitting her head with a blunt object twisting her neck leading to her death. For wilful murder the death penalty was imposed. He had pleaded guilty. Here is a trial where the death is instant and immediate fired from a pistol at 4 meters apart. The deceased has no option of surviving as with the 7-year-old deceased. In my view both prisoners would be likened to State v Mark Poroli [2004] PGNC 113; N2655 (25 August 2004) where the policeman was told to kneel and say his last prayers after which he was shot in the head and then thrown down a deep ravine. It was a deliberate and calculated act to kill the deceased and set in motion to attain that fact. The death penalty was imposed. This is the same in my view the intent to kill was manifested by the calling out urging by Michael Wanpis Oguk responded to with the gun shot direct to the victim and the deceased. It is instant and within sight of people including the victim and deceased there. That is not the same as with Poroli but the effect in law is the same, and intent to kill and killing. It will follow good to the same penalty due but for the amendment.
   
7. Looking at it at another angle is State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018) prisoner laid in ambush and shot the deceased with a gun through the heart killing him. He was convicted of wilful murder and sentenced to life years. This is not in ambush but direct and immediate. It shows blatant disregard for life and the presence of people does not deter commission. And as happened one victim survived whilst the deceased died. The sentence is not to vindicate but to sound out the pillars of the rule of law, and the right to life under section 35 of the Constitution. And to maintain clear consistency and coherence I am mindful of tariff and range relevant by Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). In my view category three will be appropriate here. Because this was a cold blooded and brutal killing there was really no need for Michael Wanpis Oguk to call out to Gee Mundi, shoot them, kill them. Because no one was in danger to life or limb. It was not what was seen in Kwapena v The State [1978] PNGLR 316. This is a deliberate act intended to kill the deceased with a very dangerous weapon that ended the life of Joel Yambe with the squeeze of that trigger. He was innocent, defenceless, and harmless. And did not pose any danger at all to Gee Mundi let alone Michael Wanpis Oguk. There really was no need at all to use the gun as he did. He is a very intelligent person having graduated from university. There was no lawful justification. He has realized the gravity of his actions and has not disclosed nor surrendered the weapon he used to police. He has concealed it. This is determination to extinguish the deceased and in the face of the law not to owe up. It is blatant disregard for the sanctity of life and the right to life under section 35. It warrants that sentence that is bold must be imposed. No man is above the rule of law. Both prisoners are not the law unto themselves. Because Papua New Guinea is a thousand tribes one under the same sun blessed with thou shall not kill.
   
8. Continued defiance depicted out by the Presentence report that has been filed showing discontent upon the findings of the Court and continued insistence on what was not there in law must be weeded out with sentence that reflects that crimes of abhorrence will meet the full force of the law. Citizens who see fit to take out lives of others with deadly weapons such as guns, knives, bush knives, any serious weapons known to men, have no place amongst civilized society. Because “The Supreme Court in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes have no boundary and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra) the parliament has already legislated the different types of homicide by classifying them into Manslaughter, murder, and wilful murder. In our view, it serves no purpose when the Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the value of lives that have been prematurely terminated. The notion of sanctity of life and Constitutional protection of lives therefore become meaningless and mere judicial rhetoric, Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004).
   
9. When its facts are seen out the aggregate is that both prisoners were found guilty equally in their roles in the death of the deceased by section 7 (1) (a), (b) and (c) of the Criminal Code in that both accused assisted each other in intending to kill the deceased and did kill him. The totality of the evidence: Kuanande, The State v [1994] PNGLR 512 was firm that one was not disassociated in the common intention to shoot and to kill the deceased. Both were therefore liable for his death pursuant to section 299 (1) of the Criminal Code. There was no break in the chain of the intent by reference of each as principal offenders within the definition of an accomplice in Amoko, The State v [1981] PNGLR 373. It was explicit that both were aiders and abettors within Wani v The State [1979] PNGLR 593, because Michael Wanpis Oguk called out to Gee Mundi shoot them, kill them which was responded to by Gee Mundi in shooting the victim and the deceased with the pistol that he had injuring them and killing the deceased. Not only were they there but participated in the common intention to kill. And that they both in pursuit of that common intention killed the deceased pursuant. They were not innocent bystanders but were part of that common intention to kill the deceased and did kill him. One Michael Wanpis Oguk procured Gee Mundi to realize that common intention to kill. And both acted in concert and unison with that common intention. One did not disassociate one from the other in it culminating eventually to the death of the deceased. As in Porewa Wani (supra) calling out “Alaia Alaia, kill him, kill him” Avia Aihi acting in accordance and stabbing and killing Morris Modeda. That is the classical situation here firmed out against both Michael Wanpis Oguk and Gee Mundi.
   
10. It is settled that no one case is the same, each would draw its own sentence by its own facts and circumstances. Which is exercised judicially. It is a very delicate act balancing to settle a just and proportionate penalty against the prisoners in their case: Aihi v The State (No 3) [1982] PNGLR 92. By itself judicial discretion is not tied down as each case will draw penalty relative to its facts and circumstances, Simbe v The State [1994] PNGLR 38. No one case of wilful murder, or homicide is the same as the other, each has its own peculiar facts and circumstances that will eventually lead out into a proportionate penalty due, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). It would be the same in my view for the determination of an appropriate and proportionate sentence due the prisoners here. The gun was discharged without regard for all the persons there. Both paid no heed for the consequences of that action. When human life is seen this way then the penalty must sanction Leslie v The State [1998] PGSC 22; SC560 (7 August 1998). He was a convict he paid no heed that the person he was shooting was a policeman. This is a case of a licenced firearm that is used in the hands of the licenced holder without regard for the safety of those there. His conduct is such that there is no respect and adherence to the law after the shooting. He runs away and conceals hides the weapon used. He does not disclose his firearm licence to the police up to the date of this sentence including the weapon used. He has clearly defied the law in so doing. He with the co prisoner who instigated have no place in an orderly society. The sentence must reflect the contempt of the law.
    
11. Because here is shooting that is 4 meters apart, the force of that bullet exiting from that gun into the deceased verified by the medical report is self-explained. Joel Yambe was shot with a gun, a firearm on the 03^rd July 2022 in the left chest at 9.00am at Waghi Valley Village, Banz. Exhibit P4 by Doctor Kelvin Kalate, examining Medical Officer of the Mt Hagen General hospital concludes, “In my opinion, he died from a massive left haemothorax due to a penetrating chest injury from a firearm as a result of homicide.” The history set out in that medical report was “the deceased was said to have been shot on his chest on the 03^rd July 2022. He was brought to Kunjip Hospital, however succumbed to his injuries and died the next day on 04^th July 2022 at 11.30am. General Physical Examination was that...He had wound dressings applied and intact on the left anterior and lateral chest, left upper limb and left inguinal area. The external examination, “Chest- (1) There was an oval shaped bullet entry wound on the left mid clavicular area. There was blackening of the surrounding skin edges of the wound with an abrasion ring seen. Also, stippling was noted in the surrounding area. (2) There was a superficial incisional wound over the left anterior chest. (3) There was a thoracostomy wound seen within the left safe triangle. Abdomen- There was stitched up incisional wound on the left inguinal area....Limbs- There was an incisional wound extending from the distal left forearm to the distal arm with its depth reaching the muscle compartments.”
    
12. And the internal findings......“Chest- (1) There was subcutaneous collection below the bullet entry wound. (2) The left clavicle and 1^st rib were fractured at the area where the left subclavian vessels pass out of the thoracic outlet. (3) The left Lung was collapsed with a massive blood collection seen within the left thoracic cavity. (4) A bullet fragment Exhibit P5 was found within the blood collection in the left thoracic cavity.” And it is consistent that the left clavicle and the 1^st rib were fractured at the area where the left subclavian vessels pass out of the thoracic outlet. The left lung was collapsed with a massive blood collection seen within the left thoracic cavity. These are details that leave no place for a lenient sentence.
    
13. The pain of the wives’ children and family of the prisoners is a direct result of their criminal behaviour and does not mitigate. Because he who boldly sets out to commit a criminal offence knows the consequences of that act befalling him. His own family will be derailed from the comforts of orderly society, and such will not be used as a shield against what the law foretells for their criminal conduct: Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000). Crime does not pay, and it is the responsibility of both Gee Mundi and Michael Wanpis Oguk when they set out to commit this crime. The welfare of their wives, children and any others who they looked after will not shield the inscription of the Legislature on the sentence due them.
    
14. The presentence report filed in support of both prisoners confirms substantial compensation has been paid for the death of the deceased. That would be mending of the relationship between the prisoners’ people and that of the deceased. But will not alleviate what the legislature has prescribed in their cases in the penalty due. Whether it is the full compensation demand of K 400, 000.00 plus 100 live pigs, or bel Kol paid K 50, 000.00 plus 20 pigs it will not alter the prescription by the legislature. This view is very clear in Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Law (Compensation) Act is a maximum of K 5000 and not more. Here the payment exceeds that amount. And it does not mean that the prisoners will now have some of the time due in law for the crime reduced. In any case it is accepted that the conduct is very serious on their part. They now realize the full implications of their actions. The more that is poured out in the form of compensating will not be the same as the civil law principles of mitigating one’s liabilities or costs, or in a leasehold situation keeping the subject leased in good order mitigating any losses because of the claim made: Boroko Motors Ltd v Meridian Motors Ltd [2020] PGSC 114; SC2028 (6 November 2020). The deceased does not rise from the dead with the amount paid. And as such it does not make any difference eventually to the penalty due them.
    
15. Both prisoners are first offenders. Gee Mundi is well educated with a university degree majoring in science employed as a pilot until 2014, when he left to assist his father in the business run as Waghi Food Processing where he was its General Manager. He trained and qualified as a pilot in the Philippines. And is 32 years old originally from Milep village, Nondgul in North Waghi District. Second born out of six children he is a married man with five children from his union. Michael Wanpis Oguk is 58 years old married with 12 children. Employed casually with that company he is also a first offender. He was educated to grade 8 level at High School. He is president of the local Komni League he has never offended the law. Presentence report filed in his cause does not provide any material to extenuate his sentence in the crime. It details the suffering of his wife children directly as a result of his crime. They are not able to sustain themselves without the income that he made working for the company.
    
16. I consider the deliberate and calculated intent to shoot and kill the deceased as warranting the maximum penalty of life imprisonment. Both will be equally sentenced to life imprisonment because, Michael Wanpis Oguk called out shoot them, kill them, and Gee Mundi abided pulled out the loaded gun pointed at the victim and Joel Yambe and fired at 4 meters apart bullet going through Augustine Kongiye and into the Left chest of Joel Yambe the left clavicle and the 1^st rib were fractured at the area where the left subclavian vessels pass out of the thoracic outlet. The left lung was collapsed with a massive blood collection seen within the left thoracic cavity.”
    
17. Whether it is with a knife: State v Soso [2015] PGNC 185; N6082 (21 September 2015) or a bush knife, State v Javopa [2014] PGNC 49; N5579 (17 April 2014) or a gun, State v Guna (No. 2) [2024] PGNC 199; N10867 (19 June 2024), or axe, the fact of the matter is a human being’s existence is denied intentionally. The prisoners without mercy, pitilessly, without fear, without any emotion, senselessly took away the life of another fellow human being, Joel Yambe. I have deliberately set out section 299 of the code charging the prisoners to show the language of the Legislature in wilful murder. The intentional taking of law “shall be sentenced to life imprisonment” is very clear and explicit language by the people of Papua New Guinea, through their parliament against this conduct here evidenced by the prisoner. It is a commanding language that this Court is not empowered to legislate against but to follow and apply without question. I will do that here given my facts and circumstances. It is very clear demarcation set that culminating from the ever prevalence of this offence. It will not be tolerated. Enough is enough, life must be lived by the Christian principles sanctioned deep into the laws. Thou Shall not Kill is clearly settled in section 299, 300, and 302. The Constitution is of Stone not paper. Man must adhere to the dictates that we are indeed Christian not by decoration but by deed. He takes what the law prescribes. I do not make laws, nor do I interpret outside of the law. I apply the law because, that is evident by the facts and circumstances portrayed in bold here.
    
18. Michael Wanpis Oguk and Gee Mundi are both sentenced for the crime of wilful murder committed upon Joel Yambe on the 03^rd July 2022 at Waghi Valley Village, Banz to life imprisonment without parole forthwith.
    

Orders Accordingly,
__________________________________________________________________
Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Defendant