State v Makea [2025] PGNC 78; N11208 (21 March 2025)

N11208

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 276 OF 2022

THE STATE

V

PYRANGAE MAKEA

WABAG: BERRIGAN J
21 MARCH 2025

CRIMINAL LAW – SENTENCE – S. 300(1)(a), Criminal Code – Pre-planned murder of innocent bystander with dangerous weapon, a bush knife, in the company of others, also armed with bush knives – Vicious attack causing severe injury to neck and head - Strong intention to cause grievous bodily harm – Retaliation against an innocent bystander is a specially aggravating factor - 25 years of imprisonment imposed.

The offender was found guilty following trial of murder. The deceased, Nakandio, and others were at the local store and meeting place following the election of his brother, Nick, as ward councillor. The deceased’s brother, Frank, drove away a boy, Isaac, aged between 14 and 16 years of age whom he suspected of eavesdropping for another candidate, by slapping him on his back. The boy reported the matter to the offender who armed himself with a bush knife and went in the company of other men, also armed with bush knives. The deceased was closest to the road and the offender and two others attacked him. The offender struck the deceased after two others had attempted to strike the deceased and missed. The offender struck the deceased with such force that he caused a devastating 30 x 20 x 10 cm wound to the deceased’s neck and head.

Held:

(1) In aggravation there was some pre-planning. The offender went to where the deceased was, armed with a dangerous weapon, a bush knife. He went in the company of other men, who were also armed with bush knives. The offender struck the deceased after two others had failed to make contact showing his strong determination to cause grievous bodily harm. It was a vicious attack. He struck the deceased with such force that he inflicted a 30 x 20 x 10 cm wound to his neck and head. The deceased was unarmed albeit he tried to defend himself with a coffee stick. It was specially aggravating that the offender attacked an innocent bystander. There were no extenuating circumstances. In mitigation this was the offender’s first offence. The offence was not committed in circumstances of significant de facto provocation. The slap did not occur in the offender’s presence. It caused no physical injury to Isaac. There was no special relationship between the offender and Isaac. There was no suggestion of any cultural or customary provocation. Moreover, the response was so disproportionate to any offence or insult that could have been caused by the fact that Frank slapped the boy that that fact was rendered insignificant. There was no mitigation merely because the matter was brough via an indictment pursuant to s 526, Criminal Code, however, the offender’s attendance following the failure of authorities to locate him other than through his lawyer was taken into account, albeit he was obliged to attend once he became aware of the proceedings. There was some delay but not of particular significance when balanced against all the factors for consideration including the nature and seriousness of the offence. Murder is prevalent and calls for personal and general deterrence.

(2) Sentence of 25 years of imprisonment imposed less time spent in custody. No suspension warranted.

Cases cited
Manu Kovi v The State (2005) SC789
The State v Imbuni [1997] PNGLR 400
State v Waira (2020) N9518
Joseph Enn v The State (2004) SC738
Sakarowa Koe v The State (2004) SC739
The State v Matai (2011) N4256
The State v Mark John (2024) N11107
The State v Philip Powi (2022) N10242
The State v Lambert (2009) N3873
The State v Yapa (2023) N10615
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38
Rex Lialu v The State [1990] PNGLR 487
Regina v Peter Ivoro [1971-72] PNGLR 374
Ume v The State (2006) SC836
State v Richard Namaliu (2020) N8506
The State v Benedict Simanjon (2020) N8637
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91

Counsel
Mr P Tengdui for the State
Mr J Yapao for the accused

DECISION ON SENTENCE

1. BERRIGAN J: The offender was convicted following trial of the murder of Nakandio Kilya, contrary to s 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. The offence was committed at Tangaimanda village on 25 July 2019.
   
3. Polling for the local council ward was to take place on 22 July 2019 in the village but was held at Wapenamanda on 23 July 2019 following concerns there would be trouble. Voting was conducted peacefully and counting was conducted at Wapenamanda on 25 July 2019. Nick Kaip Kilya was declared the winner. Supporters of Nick Kaip Kilya returned to Tangaimanda, arriving about 7 or 730 pm. They were dropped off at the store and local meeting place. They were drinking coca cola drinks and discussing the election when Isaac John, a boy aged between 14 and 16, came to where they were standing. The deceased’s brother, Frank Kilya, was suspicious that he was eavesdropping for another candidate and drove him away, slapping him on the back.
   
4. There was a history of tension between Frank Kilya and the offender, albeit a serious dispute which had resulted in violence and serious injuries on both sides in 2016 had been resolved at the community level. There were also some tensions between their respective families. Frank Kilya and his family were celebrating their brother’s election with their supporters at the store. The offender’s brother, Aleke Makea, was a rival candidate. The offender was not one of Nick Kaip Kilya’s supporters and had already gone home. Regardless of his age, Isaac was not in the Kilya camp.
   
5. Against that background, when Isaac reported to the offender that Frank had slapped him, the offender armed himself with a bush knife, and went with others, also armed with busk knives, to attack Frank Kilya or anyone of the Kilyas. Amongst the group were Bess Tambo and Pato Let. Bess Tambo was one of those injured in the large dispute between Frank and the accused in 2016.
   
6. The group came to the road near the store and when Frank tried to explain, Bess, Pato and the offender came down to the store. Nakandio Kilya, Frank’s youngest brother, was closest to the road and they attacked him. Bess swung a bush knife at the deceased but missed. Pato did the same thing and he also missed. The offender struck the deceased with his bush knife causing a severe wound to his neck and head and he fell down instantly.
   

Preliminary Matter

7. The offender was convicted yesterday and released on bail to allow him to prepare for the sentence proceedings today. He failed to appear from bail.
   
8. Defence counsel indicated that there was a tribal fight in the village that prevented him from appearing. State counsel said he had spoken to the witnesses who said there were no such reports. No evidence was put on by affidavit.
   
9. I indicated that I intended to proceed with sentence having regard to ss 593 and 596, Criminal Code and the authority of The State v Imbuni [1997] PNGLR 400. In that case one of four prisoners failed to appear for sentence after escaping from custody. In proceeding to sentence Akurum J held that by virtue of ss. 593 and 596, the absence of a prisoner after conviction but before being administered allocutus and sentenced, does not invalidate sentence or judgment. Applied State v Waira (2020) N9518.
   
10. Defence counsel took no objection. Whilst he indicated that there had been a tribal fight in the village the fact is that it was made very clear to the offender that he was required to attend today and he has failed to do so. He has forfeited his right to allocutus and his conduct must not be allowed to frustrate the judicial process.
    

Submissions on Sentence

11. In considering my decision I have had regard to Manu Kovi v The State (2005) SC789 in which the Supreme Court suggested the following scale of sentences for murder.
    

CATEGORY	MURDER
CATEGORY 1	-12 – 15 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.
CATEGORY 2	-16 – 20 years
Trial or Plea. -Mitigating factors with aggravating factors.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.
CATEGORY 3	- 20 – 30 years-
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.
CATEGORY 4	- LIFE IMPRISONMENT-
WORST CASE – Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	-Pre-meditated attack. -Brutal killing, in cold blood. -Killing of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.

Submissions

12. I have also taken into account the submissions of counsel for which I am grateful.
    
13. In summary the State submits that offence falls in category three of Manu Kovi, attracting a penalty of between 20 and 30 years. In the particular circumstances of this case a sentence of 28 to 30 years is sought.
    
14. It referred to the following cases in comparison:
    
    1. Joseph Enn v The State (2004) SC738: the appellant left his village for to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim and another person had an argument and they then fought. One of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that the head was totally severed from the body. The appellant pleaded guilty to one count of murder. The sentence of 20 years was affirmed on appeal;
    2. Sakarowa Koe v The State (2004) SC739: the appellant used a firearm to shoot the deceased dead. The sentence of 20 years was affirmed on appeal;
    100. The State v Matai (2011) N4256, Cannings J: The offender pleaded guilty to murdering his brother in law by cutting him on various parts of his body with a bush knife, whilst the deceased was working in a plantation. It was a vicious attack arising out of a long running tension between the offender and the deceased and took place in the presence of the deceased’s children. The Court imposed a sentence of 22 years;
    4. The State v Mark John (2024) N11107, Narokobi J: The offender pleaded guilty to the murder of the deceased, a Grade 7 student with whom he had a relationship. He lay in wait for her and inflicted a knife wound to the head measuring 15 cm deep, fracturing her skull. A sentence of 22 years of imprisonment was imposed;
    5. The State v Philip Powi (2022) N10242, Miviri J: The offender was found guilty following trial of the murder of the victim, his cousin, after an altercation in which his cousin and another person beat the offender causing bleeding and bruising to his face. The offender retaliated by running inside and arming himself with a bush knife then chasing the deceased down, cutting him on the neck, ribs, and leg before throwing him in the river. He was sentenced to 25 years IHL.
       
15. Defence counsel submitted that a sentence of 12 to 15 years of imprisonment, partially suspended was appropriate.
    
16. He referred to the following cases in support of his submission:
    
    1. The State v Lambert (2009) N3873, Kandakasi J: the offenders, aged 19 to 25, were convicted following trial of the murder of a man who with another was drunk and confronted two other men. The offender was amongst a group who joined the fight during which the deceased was killed. He was found with bruising to his face, a wound to his right hand lower arm measuring about 2cm and a wound to his back measuring about 2cm. No postmortem was performed but the medical evidence attributed the cause of the death to internal bleeding leading to shock. There was no preplanning. They were drunk and threw themselves into a fight. One of them was armed with a cassowary stick. They were sentenced to 15 years of imprisonment;
    2. The State v Yapa (2023) N10615, Kangwia J: the offender and first wife, pleaded guilty to murdering her husband’s second wife, stabbing her a number of times with a knife. She was sentenced to 12 years, six of which was suspended.
       

General Principles

17. The maximum penalty for murder contrary to s 300(1)(a) of the Criminal Code is life imprisonment.
    
18. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510, together with denouncement. Guidelines and comparative cases are important considerations but every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death: Rex Lialu v The State [1990] PNGLR 487.
    

Consideration

19. The offence in this case was very serious.
    
20. In aggravation there was an element of pre-planning. The offender went to where the deceased was. He went armed with a dangerous weapon, a bush knife. He went in the company of other men, who were also armed with bush knives. The offender struck the deceased after two others had failed to make contact showing his strong determination to cause grievous bodily harm. It was a vicious attack. He struck the deceased to his neck and head with such force that he inflicted a devastating 30 x 20 x 10 cm wound to his neck and occiput, the latter being the back part of the head or skull. The deceased was unarmed albeit he tried to defend himself with a coffee stick.
    
21. What distinguishes this case and makes it particularly serious is that the offender attacked and killed an entirely innocent bystander. Indeed, as the authorities discussed in Manu Kovi recognised, the killing of an innocent bystander has long been regarded as a specially aggravating factor, potentially placing the murder in the fourth category of Manu Kovi.
    
22. In all the circumstances, however, it is my view that this case falls in the third category of Manu Kovi.
    
23. There are no extenuating circumstances, that is “no particular circumstance in which the offence was committed that has the effect of reducing or diminishing the gravity of” it, or would diminish the culpability of the offender: see Regina v Peter Ivoro [1971-72] PNGLR 374; Ume v The State (2006) SC836.
    
24. In mitigation this is the offender’s first offence.
    
25. The offender is from Tangaimanda village, Wapenamanda, Enga Province. He is 45 years old and married with three children. He is a subsistence farmer from the village. He has no formal education. He attends the Life in the Spirit Ministries.
    
26. I do not consider that the offence was committed in circumstances of significant de facto provocation. It is the case that Frank slapped Isaac, a young boy. But that did not happen in the offender’s presence. It caused no physical injury to Isaac. There is no evidence of a special relationship between the offender and Isaac. There is no suggestion of any cultural or customary provocation that is sometimes seen in other cases. The offender took at least some time to respond and when he did, he did so armed with a bush knife and in the company of others also armed with a bush knives.
    
27. Moreover, the response was so disproportionate to any offence or insult that could have been caused that the fact that Frank had slapped Isaac that that fact is rendered insignificant. That is particularly so in circumstances where the offender murdered Nakandio Kilya, Frank’s brother, an innocent bystander.
    
28. As above, it is a very serious matter in aggravation to extract one’s revenge on an innocent bystander.
    
29. I make it clear that there is no aggravation in the fact that the offender pleaded not guilty at trial. That was his right but he is not entitled to any reduction on sentence that he might have received if he had pleaded guilty.
    
30. Given his failure to appear I am unable to find any remorse.
    
31. The offender was apprehended by police in Wapenamanda on 2 December 2020. I accept that the offender participated in an interview with police but I do not consider that of significant weight in mitigation.
    
32. Cooperation with authorities, however, like an early guilty plea, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice, for instance by revealing details about the crime or those who participated in it. Cooperation may also be relevant where an offender assists in the apprehension or conviction of a co-accused, with information which is full and frank, and which could significantly assist authorities: State v Richard Namaliu (2020) N8506 at [52] to [53]. There is nothing in his record of interview that merits significant mitigation.
    
33. To be very clear there is no mitigation merely because a matter is brought via an indictment pursuant to s 526, Criminal Code.
    
34. I do take into account, however, that following his discharge from the committal court and the subsequent presentation of a s 526 indictment on 10 May 2022, authorities were unable to immediately locate him, and following contact by defence counsel he submitted himself to the jurisdiction of the Court. Of course, once he became aware that he was wanted by authorities he was obliged to attend.
    
35. There is no mitigation in the fact that two others namely Bess Tambo and Pato Let were not charged. The offender has been charged and proceeded with according to the law and has been found guilty. Whether or not they have been charged does not alter his criminal responsibility. Moreover, it was he was the principal instigator and perpetrator. It was he who Isaac reported to. It was he who had underlying issues with Frank Kilya. It was he who went with others who were armed and it was he who struck and killed the deceased.
    
36. There are no matters of mitigation special to the offender.
    
37. He is 45 years old and appears to be in good health.
    
38. There has been some delay occasioned since his charging on 3 December 2020, following his discharge at committal, the presentation of the s 526 indictment and the commencement of the trial. I note the principles applying. I do take it into account albeit I do not regard the delay as of particular significance. Delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence: The State v Benedict Simanjon (2020) N8637 at [40]; State v Tony Kande, Henry Naio and Wilson Muka (2021) N9252 at [58]; The State v James Paru (No 3) (2021) N9248 at [37].
    
39. Whilst I acknowledge that the sentence imposed will cause great hardship to the offender’s family, 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.
    
40. Such offences are prevalent and call for severe personal and general deterrence.
    
41. I exercise my discretion to deduct time spent in custody to date: 4 months, 28 days.
    
42. Defence counsel has sought suspension. The State oppose it. Defence counsel did not apply for a probation report. He was given the opportunity to prepare with his client yesterday for sentence today and he has not pointed to any matters warranting suspension.
    
43. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
    
44. There is nothing before me to suggest that the offender will suffer excessively in prison. Restitution is irrelevant here.
    
45. Moreover, having regard to the nature and gravity of the offence this is not a case warranting suspension and none of the considerations are established for the reasons outlined above: The State v Tardrew [1986] PNGLR 91 applied. Only service of the sentence in custody will ensure that the offender is adequately punished for his conduct, that the Court appropriately denounces the offences, and that the offender and others are deterred from committing similar offences in the future.
    
46. In all the circumstances I sentence the offender to 25 years of imprisonment.
    
47. I make the following orders:
    

Order

(1) The offender is sentenced to 25 years of imprisonment for the murder of Nakandio Kilya.
(2) Time spent in custody to date, 4 months, 28 days, shall be deducted from time to be served.

Sentences accordingly.

_______________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the offender: McKenzie Lawyers