Nimagi v State [2004] PGSC 31; SC741 (1 April 2004)

SC741

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCR 07 OF 2003

BETWEEN

JOSEPH NIMAGI, TOM GURUA KERUI
and DAVID BAWAI LAIAM
Appellant

AND

THE STATE
Respondent

Mt Hagen: Sevua, Kandakasi & Lenalia, JJ
2004: 30th March and 1st April

CRIMINAL LAW – Murder – Sentence – Plea of Not guilty – Conviction after trial – Sentence of 50 years – Whether manifestly excessive – Facts disclose possible charge of wilful murder – Offence committed in the course of armed robbery – Use of firearm – First time offender – No expression of remorse to relatives of deceased – Sentence imposed lenient in the circumstances – No cross-appeal or an argument for increase on sentence – Sentence by National Court confirmed with warning that the Supreme Court will exercise its power under s.23 (4) Supreme Court Act (Chp. 37) with or without cross-appeals or arguments for increase in sentences in appropriate cases – Youthfulness no longer a relevant consideration in serious violent offences.

Criminal Code Act, ss. 19, 300 – Supreme Court Act, s.23 (4).

Held:

1. The appellant has not demonstrated any identifiable error in the exercise of the Court’s sentencing discretion.
   
2. In the circumstances of the case, the sentence of 50 years is neither excessive nor manifestly excessive
   
3. This is a case in which the appellants should have been indicted with wilful murder and the death penalty considered.
   
4. In terms of s. 23 (4) of the supreme Court Act, this Court now issues a warning that in future, the Court will exercise its power to increase sentences which it considers appropriate in appeals against severity of sentences.
   

Cases cited:
William Norris v. The State; [1979] PNGLR 605
Pauline Painuk v. The State; unnumbered & unreported, (SCRA 54 of 2000), 22nd November 2000
Max Java v. The State; SC701, unreported, 20th December 2002
The State v. Thomas Waim; [1995] PNGLR 187
Bokum Umba v. The State; SC92, unreported, 2nd April 1976
The State v. Michael Amuna Koupa; [1987] PNGLR 208
The State v. Kevin Anis & Martin Ningigan; N2360, unreported, 7th June 2003
The State v. Wesley Nobudi & Ors.; N2310, unreported, 19th December 2002
Goli Golu v. The State; [1979] PNGLR 653
Ure Hane v. The State; [1984] PNGLR 105
The State v. Laura No 2; [1988-89] PNGLR 83

Appellant in person
R.Auka for Respondent

1st April 2004

BY THE COURT: You David Bawai Laiam have appealed against the sentence of 50 years imposed on you by the National Court at Bulolo on 11th December 2002.

Your co-offenders and appellants Joseph Nimagi and Tom Gurua Kerui’s appeals were dismissed by this Court on 30th March 2004, for want of prosecution pursuant to Order 7 Rule 53 of the Supreme Court Rules. They escaped from Bundaira CIS on 25th August 2003 and are still at large and failed to prosecute their appeals. We note too that you also escaped with those two prisoners, but were recaptured and returned to prison.

In your notice of appeal, you stated your ground of appeal as, "I am appealing against the National Court’s sentence which was handed down on me to serve." We consider that you are appealing against sentence only.

In your written submissions you made a number of submissions. First, you said that the sentence was crushing on you therefore you asked this Court to review the sentence. Secondly, you said the trial Judge did not consider that you were a first offender in the early age of 18 years. Thirdly, the murder was not planned but was an accident as you did not mean to kill the deceased. Fourthly, you said the trial Judge was unfair to you because he imposed 50 years on you whereas a co-accused, Joseph Nimagi, was sentenced to only 20 years. Your argument is that regardless of whether Joseph Nimagi acted as a watchman or pulled the trigger you all should have been treated in the same way. Finally, you submitted that a sentence of 20 years was appropriate in your case.

Again, the Court needs to reiterate the law relating to an appeal against sentence. The Supreme Court established the relevant principle in William Norris v. The State [1979] PNGLR 605 at page 612, where the Court said:

"the principle applicable is that the sentence imposed by the trial judge should not be disturbed unless the appellant can show that an error had occurred which has the effect of vitiating the trial judge’s discretion on sentencing".

Since that decision, the Supreme Court has, in many published and unpublished judgments, dismissed appeals on the basis of that principle. Our attention has been drawn to two most recent Supreme Court judgments during this circuit and we cite them here. In Pauline Painuk v. The State, unnumbered and unreported, (SCRA 54 of 2000), 22nd November 2000; the Court confirmed a sentence of 18 years to a plea of murder where the appellant had stabbed the deceased, a young school girl, twice. And in Max Java v. The State, SC 701, unreported, 20th December 2002, the Court confirmed a sentence of 20 years on a plea of guilty to murder, where the appellant had pursued the deceased and attacked him with a grass knife causing severe injuries resulting in death. On appeal, the Court said at page 3, "Having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive." We adopt that view and apply it to the present case.

We are of the view that this is a very bad case of murder which falls into what has been described in other cases as the worst type of cases which warrants the maximum penalty of life imprisonment. We restate the facts as found by the trial Judge to highlight and demonstrate the very serious nature and circumstances of the case.

The trial Judge’s judgment on verdict on pages 220 to 239 of the transcript described the evidence presented by the prosecution witnesses as proven facts at page 234 as follows:

"These three accused were together in the afternoon on the day during which time they had some drinks. As the night approached, their drinks ran out and Tom Gurua decided that they should go and visit his ex girl friend, one Imelda, a teacher at Marian Hill Primary School. The three men walked to Block 9 where they were joined by two small boys aged 11 and 13 respectively. Between 7 pm and 7.30 pm, they made their way to Marian Hill. Except for the accused Joseph Nimagi and the two small boys, Rocky Emmanuel and Moru Melei, Tom Gurua and David Bawai were each armed with home made guns commonly referred to as pop guns.

After leaving the two small boys outside the fence in the darkness, they checked for Imelda at her place and she was not home. The three men then converged on the group that was gathered at the rosary meeting in front of Francesca Tiloch’s house.

If there was any common purpose or plan to do anything, it was there where their intention was made obvious or became apparent that they wanted to rob those gathered there and that was the reason for them being armed. Thus while David Bawai ordered those gathered to lie down on the ground, Tom Gurua and Joseph Nimagi walked over to the bodies lying on the canvass and proceeded to the house on high posts which belonged to Helen Aihi. Tom Gurua held up Annette Kamen with his pop gun as he entered the house ahead of Joseph Nimagi. As Helen Aihi came out of the toilet, Joseph Nimagi went over to her and held her up with a knife. Both men had their faces covered except their eyes."

The trial Judge was therefore satisfied that the three accused were present at the scene aiding and abetting each other to commit robbery on those gathered after their visit to Imelda proved unsuccessful. In his discussion of the evidence and the involvement of all three prisoners, the trial Judge found that they were covered under Sections 7 and 8 of the Criminal Code. At page 238 of the transcript, he said the following:

"There is ample evidence against all three accused of their involvement in this trouble. The shooting of the deceased was a probable consequence of the accused entering the premises where the deceased and the others were gathered for the purpose of causing them harm. They were not there to have a friendly chat with them. They were not there to join them in their prayer worship. They went there with guns and knives and they meant to do harm.

The deceased was shot at a distance of six to seven metres on the chest.

Two of his ribs were broken by the pellets which also penetrated his lungs and severed major blood vessels from which he bled heavily and subsequently died almost immediately.

There is no doubt that when the accused shot the deceased, they meant to cause him serious bodily harm. Unfortunately, the deceased died. It is immaterial now as to who fired the shot."

The trial Judge was therefore satisfied beyond reasonable doubt that the three accused while acting in concert with each other aided and abetted each other and killed the deceased, Anthony Pomahun on the night of 2nd May 2002.

We pause here for a moment to consider to the findings of the trial Judge. The three prisoners went to the school in what originally appeared to be a social visit. However, they were armed with two guns and a knife. Why did they carry these weapons? They must have known that they would most likely use the weapons and that someone might possibly be injured or killed. That is why we consider that the prisoners should have been charged with wilful murder and not murder, and if convicted of wilful murder, they should be sentenced to death. It is our view that the only reason they carried the weapons was because they intended too use them to achieve their purpose whatever that might have been. And as it were, you David Bawai Laiam shot and killed Anthony Pomahun without any justification at all. You were illegal intruders and trespassers in the first place. You had no right to be at the premises of Francesca Tiloch at Marian Hill School at the material time. You carried a gun to use it to kill someone if you had to, and that is what you did. You should have been charged with wilful murder. Again we see the impact of over indulgence in alcohol and lack of respect for the properties and lives of innocent law abiding citizens.

We consider that the time has come for the Public Prosecutor and his State Prosecutors to not compromise their responsibility and duty under the cloak of plea bargaining by not indicting violent killers with wilful murder. The trust and confidence of the State and its citizens are bestowed upon them and in their pursuit of justice for the common people they must do what is expected of them. This case is one in which an indictment for wilful murder should have been preferred. The evidence clearly indicate that the prisoners should have been indicted with wilful murder. An innocent life has been lost and a young family’s life and future has been shattered and ruined beyond repair while the offenders enjoy life. So where is justice? Why is the Public Prosecutor, contend on charging violent killers with murder when he should be indicting them with wilful murder?

Other aggravating features of this case were that after you and your friends had robbed the group gathered for worship, you David Bawai, grabbed the deceased’s daughter and pulled her by her hand. You wanted to abduct her. But you had no right to do that. She called out to her father (deceased) for help. The deceased came to his daughter’s aid and fought with you while you were assisted by Tom Gurua and Joseph Nimagi. You and your two partners were nothing but cowards, gang- fighting a father who had every right to protect his daughter. In the process of your cowardice and criminal act, you shot the deceased and you had no right at all to do that. You had no legal authority to carry a gun. You used it to kill an innocent person who came to rescue his daughter whom you were trying to abduct. You prematurely ended the life of a young man dedicated to educating the children of Wau and you cannot come here and complain that the sentence of 50 years is excessive because you are a young 18 year old first offender. You think that your life is more important than the life you took and that is a misconception. We consider that you should have been sentenced to life imprisonment.

The Courts have said many times that youth is no longer a mitigating factor in a very serious crime such as this. You cannot come to this Court and justify your criminal act by hiding behind the cloak of youthfulness when you have brutally murdered an innocent person. Not only have you deprived the wife and children of the love and care and protection offered by the deceased, but you have also deprived the children of Marian Hill School, and Wau for that matter, in taking the life of their teacher. Your submission that the trial Judge did not consider that you are 18 years and a first offender is unmeritorious and nonsense. His Honour considered all your personal antecedents at pages 249 and 250 of the transcript. He said, "I take note of their previous good character and background and they are generally young men reaching their 20th birthday except for Joseph Nimagi who is still 17 years old. He clearly falls into the category of youthful offender." The trial Judge has addressed all the issues you raised in your submissions and we find that your appeal has no merits at all. The maximum penalty for murder is life imprisonment and you are lucky you were not sentenced to life. You worry about your own life, but what about the life you took? You have not shown any remorse at all.

In any event, your submission must be considered in the light of precedents in this jurisdiction. In The State v. Thomas Waim [1995] PNGLR 187; the President of this Court alluded to two cases which discussed this issue and which we wish to cite. But first we refer to what His Honour said in that case at page 192:

"I believe that young criminals cannot continue to hide behind the cloak of youthfulness in order to get away with very serious violent crimes. I do not, for one moment, say that youth is no longer a mitigating factor, because it still is. However, in a very serious violent crime such as this one, the plea of youthfulness would lose its significance."

His Honour then went on to cite Bokum Umba v. The State, SC 92, unreported, 2nd April 1976 where then Deputy Chief Justice Prentice said:

"I am coming to the conclusion that the sentences handed down by the National Court, even on youthful criminals, must increase significantly further, if they are to avoid being regarded by the public, and perhaps by the offenders, as derisory... and if they are to deter crime."

The second case cited by His Honour in Waim’s case is The State v. Michael Amuna Koupa, [1987] PNGLR 208 at 213 where his Honour, Wilson, J said at page 213:

"The prisoner is 19 years of age and has no previous offences. I have said before that while the age of a prisoner is a matter that will always attract the court’s attention, there comes a time particularly where one is looking at offences of a serious, violent nature where the age of the offender has decreasing impact on the sentencer’s attitude to the appropriate penalty. This is such a case."

This Court also notes some recent cases on this issue. In The State v. Kevin Anis & Martin Ningigan, N2360, unreported, 7th April 2003; Kandakasi, J referred to another recent judgment of Sevua, J in The State v. Wesley Nobudi & Ors, N2310, unreported, 19th December 2002. His Honour, Kandakasi, J said:

"Secondly, you both appear to be relatively young. But I find persuasion in what Sevua, J said in The State v. Wesley Nobudi & Ors.........His Honour said, "I do not consider that youth can still be a mitigating factor in serious cases like wilful murder. In Paulus Manadatititip & Anor. v. The State, [1978] PNGLR 128, the Supreme Court said that deterrent sentences are required where the offence is prevalent and the youthful offenders should not receive special treatment unless there are exceptional circumstances which warrant a term of imprisonment other than life imprisonment, if not the death penalty."

With this I agree and add that enough warning has already been given to youthful offenders who commit serious offences like, murder, rape and robbery. Yet of the category of offenders committing such serious offences are youthful offenders in the range of 15 to 20 years. As the Supreme Court noted in Peter Naibiri & Anor v. The State, SC 137, unreported, 25th Ocotber 1978; people in Papua New Guinea who fall into the age group of 17 to 19 already assume adult responsibilities. Accordingly, they should be treated as such. I am thus of the view that the plea of youthfulness should not be a feature in your favour in determining an appropriate sentence."

We are of the view that the principles expressed by the Courts in those cases demonstrate the position the Courts have taken on youthful offenders convicted of serious violent crimes including murder and wilful murder. We observe that in most killings, prisoners who appeal against sentence are normally accorded leniency and greater latitude by the Supreme Court, which seems to lend credence to and fuel the appellants’ misconception that the lives they have taken mean nothing to them whereas, their own lives are more important. We believe it is time that the Supreme Court came out from this kind of mentality and treat young criminals with the stern punishment they deserve. That is what the community expects from the Courts. It is our view that enough is enough, and if we do not punish murderers with what they deserve, we may be indirectly contributing to the escalating violent crimes which have transcended new heights ignoring social and moral values as observed by Kirriwom, J in his judgment and we quite agree with that statement.

The Supreme Court and even the National Court have always been inundated with references to Goli Golu v. The State, [1979] PNGLR 653; Ure Hane v. The State, [1984] PNGLR 105; and The State v. Laura No 2, [1988-89] PNGLR 193, in particular the categorization of the types of murders and the sentencing tariffs established by those and other cases. We believe that the time has come to depart from some of those principles because they are no longer suitable to the situation in the country at this time, especially when one looks at the escalating and seemingly uncontrollable criminal conduct by young offenders. The complexity of criminal behaviour and frequency of these violent crimes have transcended new heights that the Courts must seriously be addressing new trends of sentencing principles to fit the crimes instead of labouring under a false illusion that the tariffs decided more than 10 years ago are still good law. The principles may still be good and applicable, however where they set tariffs or guidelines for sentencing, those must be changed to reflect the degree, enormity and frequency of these violent crimes.

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 nowadays know 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 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 values 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.

We have attempted to review and set new guidelines and tariffs in Simon Kama v. The State (SCRA 34 of 2001), a decision, which we had delivered a while ago today. We reiterate the view that the unlawful taking away of another person’s life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra).

It is the opinion of this Court that you David Bawai Laiam should have been sentenced to life imprisonment. We consider that this is one case which deserved the maximum penalty. We have already alluded to our view that you should have been indicted with wilful murder and if the Public Prosecutor had not elected to charge you with murder, you would be looking at the death penalty now. This Court must have regard to the prevalence of violent crimes right through out the country today and impose the kind of penalties including the maximum penalties prescribed by law to demonstrate that the community has had enough of violent crimes. Violent offenders like you who arm themselves with guns and use them to kill innocent people must not expect any leniency from the Courts. A life is important, and no one has the right to take away another person’s life with the use of a gun or other dangerous weapons.

We have considered everything that you have submitted and we have also considered what the trial Judge has said in his reasons for sentence. Whilst you say that the sentence of 50 years is excessive, it is our view that it is not. This is premised upon two considerations which we have already adverted to, but we will repeat them here for purposes of emphasis. The first is that you should have been charged with wilful murder and face the death penalty. The second is that having been charged with and found guilty of murder, you should have been given the maximum penalty of life imprisonment. The circumstances of this case warranted life imprisonment. On the basis of those considerations, we consider that your appeal must fail.

Section 23 (4) of the Supreme Court Act empowers the Court to increase a sentence if it considers necessary. It provides:

"On an appeal against sentence, if the Supreme Court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal."

We have considered exercising this power in this appeal. However, as we have said in the other appeals in this circuit, we want to take this opportunity during this circuit to issue a warning that in future, the Court will exercise its power pursuant to s. 23 (4) to increase sentences in appropriate cases, especially in violent crimes like murder and wilful murder.

It is the opinion of this Court therefore that the sentence is not excessive or manifestly excessive, taking into account the circumstances of this case. Having regard to the prevalence of serious violent crimes, we are of the view that the sentence in this case is warranted.

For these reasons, we order that the appeal be dismissed and the conviction and sentence recorded by the National Court be confirmed.

Lawyer for Appellant: Appellant in Person
Lawyer for Respondent: Public Prosecutor