Nobudi v State [2009] PGSC 20; SC999 (30 October 2009)

SC999

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 01 OF 2003

BETWEEN

WESLEY NOBUDI, JOHN EVOA & FRANK YALIKITI
Appellants

AND

THE STATE
Respondent

Waigani: Davani, David & Makail JJ,
2009: 31st August & 30th October

SUPREME COURT APPEAL - Prisoner’s appeal - Appeal against sentence - Life imprisonment - Severity of sentence - Wilful murder - Committed in the course of armed robbery - Aider and abettor - No identifiable errors shown - Appeal dismissed - Sentence of life imprisonment confirmed - Criminal Code - Sections 7, 19, & 299 - Supreme Court Act - Sections 22(d) & 23(4).

Cases cited:

Paulus Mandatititip & Anor -v- The State [1978] PNGLR 128
Peter Naibiri & Kutoi Soti Apia -v- The State (1978) SC178
William Norris -v- The State [1979] PNGLR 605
Ure Hane -v- The State [1984] PNGLR 105
Goli Golu -v- The State [1988] PNGLR 193
Gimble -v- The State [1988-89] PNGLR 271

Counsel:

Appellants in person
Mr C Sambua, for Respondent

30th October, 2009

JUDGMENT

1. BY THE COURT: These three prisoners have filed appeals simultaneously against the decisions of the National Court in first, convicting them of the crime of wilful murder of one Robert Yamang at the suburb of Gerehu, in Port Moresby on the morning of 18th April 2002 on 13th November 2002 and secondly, sentencing them to life imprisonment on 24th December 2002. At the time of the hearing of the appeals, only John Evoa and Frank Yalikiti appeared. The other, Wesley Nobudi did not as he had escaped from Bomana prison on 17th December 2007 and is still at large. We note that no application has been made by the Respondent to dismiss Wesley Nobudi’s appeal for want of prosecution at the hearing, hence his appeal shall remain until such time such an application is made. We only heard the appeals in relation to John Evoa and Frank Yalikiti.

2. The brief facts are as follows: At approximately 7:15 am on 18th April 2002, the Appellants met with some of their friends at a location in Gerehu Stage 3B within the suburb of Gerehu where they held up two female occupants of a green Mitsubishi sedan and drove to the location where the crime of wilful murder took place. They came across the deceased who had reversed his white Nissan Sunny sedan out of his premises and parked on the road side, outside his gate.

3. The Appellants with their friends went and parked in front of the deceased’s motor vehicle, thereby blocking his way and got out of their motor vehicle. They forced the deceased out of his motor vehicle, stole his wallet and got into his motor vehicle. One of their accomplices by the name of Emmanuel Jawagi Goria shot the deceased on the right side of the head at very close range with a factory made pistol as the deceased was scrambling back to the gate of his premises. Following the shooting, the Appellants and their friends escaped in the two stolen motor vehicles. Sometime later, the Appellants were apprehended and charged for the wilful murder of the deceased.

4. It was alleged that the Appellants and their friends intended to cause the death of the deceased when their co-accused Emmanuel Jawagi Goria shot the deceased, thereby committing the crime of wilful murder contrary to section 299(1) of the Criminal Code. At the trial before the National Court, the Appellants pleaded not guilty to the crime and a trial was conducted to determine their guilt. As noted above, the National Court found them guilty on 13th November 2002. On 02nd and 19th December 2002, the National Court heard addresses on sentence and reserved its decision until 24th December 2002 when it sentenced the Appellants to life imprisonment.

5. There are essentially two grounds of appeal, contained in each Notice of Appeal at pp 4-9 of the Appeal Book, which are identical. The first ground relates to conviction and the second, relates to sentence. At the hearing of the appeal, the Appellants informed the Court that they were abandoning their appeals in relation to conviction. As a result, we only heard the appeals in relation to sentence. They claimed that the sentence of life imprisonment was harsh and excessive or severe in the circumstances of the case and seek to have that quashed and substituted with a lesser one.

6. An appeal against the severity of sentence is governed by section 22(d) of the Supreme Court Act. Section 22(d) states "A person convicted by the National Court may appeal to the Supreme Court with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law." But the power of the Supreme Court to hear and determine an appeal against sentence is found under section 23(4) of the Supreme Court Act. It states, "On an appeal against sentence, if the Supreme Court is of 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."

7. As noted above, section 23(4) gives the Supreme Court power to either quash a sentence imposed by the National Court and substitute it or dismiss the appeal. If it dismisses the appeal, it is usually the case that the sentence imposed by the National Court will be confirmed. However, where it considers that the sentence is less severe than is warranted in law, it may increase the sentence. In the exercise of power under section 23(4), the Supreme Court is guided by relevant principles of law in respect of appeals against sentence. These principles are well expressed by Kearney J, (as he then was) in William Norris -v- The State [1979] PNGLR 605 at 612 where his Honour said:

"To succeed in an appeal against sentence an appellant (other than the prosecutor) must persuade this Court that a more lenient sentence was warranted in law and should have been imposed; when so persuaded, this Court must quash, and substitute the sentence which should have been imposed - s. 22 (4) of the Supreme Court Act 1975. In practice, in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence; that approach accords with the approach followed by this Court and other appellate courts when reviewing any exercise of discretionary power; see House v. The King36, R. v. Taylor37 and the very full discussion by Clarkson J. in Wanosa v. The Queen38. The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access the proper sentence than is a court of appeal.

So the question in practice on a sentence appeal is usually this - has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion."

8. In the present appeal, the Appellants submitted that the learned trial judge erred in law and fact in imposing life sentences when he failed to take into account two matters they raised in their pleas in mitigation. First, they contended that they were not the ones who "pulled the trigger" of the pistol although they admitted to the police during investigations that they were involved in the armed robbery of the deceased’s motor vehicle on the morning of the date in question. They argued that they did not intend to kill the deceased. That, it was Emmanuel Jawagi Goria who "pulled the trigger". That the learned trial judge should have considered and taken into account that aspect of their evidence together with their pleas for leniency. They submitted further that if he had, he would not have imposed life imprisonment but a lesser sentence.

9. Secondly, they argued that the learned trial judge failed to consider the question of rehabilitation. That is, if they were sent to prison for a very long time, how would they be rehabilitated given that they are young men and had many more years to live. They submitted that the least the learned trial judge could have done was to take into account the option to rehabilitate, then impose a determinative sentence instead of a life sentence.

10. On the other hand, Mr Sambua of counsel for the Respondent submitted that the learned trial judge did not fall into error when he imposed the sentence of life imprisonment against the Appellants because first and most importantly, the circumstances surrounding the killing of the deceased demonstrates that the killing fell into the serious or worst case of wilful murder. That is, there was no reason at all to shoot the deceased after they held him up and took his motor vehicle. Secondly, the Appellants are equally guilty as the person who "pulled the trigger" of the pistol because they aided and abetted him to commit the crime by virtue of section 7 of the Criminal Code. Thirdly, the learned trial judge took into account all the mitigating and aggravating factors before he decided to impose life imprisonment on the Appellants. For these reasons, the sentence of life imprisonment imposed by the learned trial judge should not be disturbed, counsel submitted.

11. We must point out to the Appellants at the outset that, the crime of wilful murder under section 299 of the Criminal Code carries the maximum penalty of death. However, subject to section 19 of the Criminal Code, a lesser penalty may be imposed. This is dependent on the factual circumstances giving rise to the killing of the deceased. It is also settled law that the maximum penalty is reserved for the worst or most serious crimes: see Goli Golu -v- The State [1988] PNGLR 193. Bredmeyer J, (as he then was) suggested the different types of wilful murder cases in which the maximum penalty at that time of life imprisonment should be imposed (Ure Hane -v- The State [1984] PNGLR 105). Wilful murder done in the course of committing another crime of violence like theft, robbery, break and enter or rape, was one of them.

12. We acknowledge that the sentencing power of the Court is an exercise of judicial discretion. In an appeal against sentence imposed by a trial judge of the National Court, the Supreme Court’s sentencing discretion may be exercised only where it is shown that the trial judge has fallen into an error which is identifiable: see William Norris’s case (supra).

13. Bearing in mind the above principles and turning to the present appeal, we ask; where is the identifiable error in the decision of the learned trial judge? Is this a serious or worst case of wilful murder warranting a sentence of life imprisonment? Having noted the arguments of the parties for and against the question of severity of sentence, we are not at all convinced by the Appellants’ arguments that the learned trial judge fell into error when he sentenced them to life imprisonment. They have not demonstrated to our satisfaction that there are identifiable errors in the decision of the learned trial judge.

14. First, we have perused the learned trial judge’s written judgment on sentence and it is quite clear to us that his Honour had said that, this was a serious or worst case of wilful murder. This is how he puts it at p 13 of his written judgment on sentence which is found at p 378 of the Appeal Book; "I accept, on the basis of both counsel’s submissions, that this case falls into the most serious cases of wilful murder."

15. We have also perused the reasons for his Honour categorizing this case as a serious or worst case of wilful murder and we also note that his Honour listed a number of aggravating factors at p 11 of the written judgment on sentence which is found at p 376 of the Appeal Book that:

(1) the Appellants were convicted after a trial;

(2) a firearm was used to commit wilful murder;

(3) the wilful murder was committed in the course of an armed robbery;

(4) prevalence of use of firearms in homicide cases and other violent crimes; and

(5) loss of a human life who will be missed by his family and loved ones.

16. These aggravating factors persuaded his Honour to find that the Appellant’s case fell into the worst or serious case of wilful murder which warranted the maximum penalty of death. However, he imposed life imprisonment, instead. He described the penalty he imposed as "near maximum penalty". The reasons given by his Honour for giving a "near maximum penalty" are first, that they aided and abetted the commission of the crime by their presence at the scene of the crime by virtue of section 7 of the Criminal Code. At pp 17-18 of the written judgment on verdict which is found at pp 361-361 of the Appeal Book, his Honour gave the following reasons for holding the Appellants criminally responsible for the death of the deceased:

"However, it is my opinion that the accuseds cannot escape Section 7 of the Code. The common purpose was to steal cars. The acccuseds and their companions, who are at large, set out to commit armed robbery of motor vehicles. They succeeded in their intention by stealing the green Mitsubishi sedan. They also succeeded in stealing the deceased’s vehicle. The fact that they came across the deceased and his vehicle outside his house was not accidental or unwilled.

The evidence both from the prosecution and the defence is that, as Lawrence Aitsi was driving the accuseds with the others still at large following the robbery of the green Mitsubishi at State 3B, they saw the deceased and his vehicle so they stopped because they wanted to steal that vehicle as well.

When Lawrence Aitsi stopped the stolen green Mitsubishi in front of the deceased’s vehicle outside his gate, Emmanuel Goria, Wesley Nobudi, Franky Yalikiti Fravo and Morgan alighted because they wanted to steal the deceased’s car. That act was not accidental, but an intended act consistent with the common purpose.

There is no credible evidence that the accuseds had withdrawn from the scene before Emmanuel Goria shot the deceased. Although, they may not have shared the same intention as Emmanuel Goria, I accept that their presence outside the deceased’s premises and gate was not accidental, but willed. They planned to steal cars and they stopped near the deceased’s car because they wanted to steal it and therefore their presence at the time Emmanuel Goria was not accidental.

It is my view that without the presence of the accuseds and others, Emmanuel Goria might not have shot the deceased. But I have already found that someone inside the deceased’s car had called out to Goria to shoot the deceased. This therefore, becomes a Section 7 situation."

17. Further on in the written judgment on verdict at pp 18-19 which is found at pp 363-364 of the Appeal Book, his Honour said:

"I consider that the three accuseds were in a position to dissuade their companion, Emmanuel Goria from shooting the deceased. They achieved their common purpose of stealing the deceased’s vehicle. They should have left soon after robbing the deceased. But they did not. They remained in both stolen vehicles and saw what Emmanuel Goria did. None of them discouraged him from pulling the trigger, yet they were in a position to do that. None of them called out to him not to shot the deceased because they had already succeeded in their common purpose. Instead, one of them inside the deceased’s car called onto him to shoot the deceased. I find this constitutes aiding and abetting under Section 7."

18. We have taken the liberty to reproduce the relevant parts of his Honour’s reasons to show to the parties why his Honour had categorized this case as a serious or worst case of wilful murder. We too have considered the reasons and are in complete agreement with his Honour’s reasoning and conclusion. In other words, we find no error in the judgment of the learned trial judge. The finding by the learned trial judge that the Appellants should be sentenced to the "near maximum penalty" as the person who "pulled the trigger" of the pistol was correctly made in light of section 7 of the Criminal Code.

19. This is because there is no doubt in our minds that this is a typical gang or mob attack and violence by youths on an innocent person. It was committed in the course of an armed robbery and there was really no reason for them to kill the deceased after they succeeded in hijacking his motor vehicle. In our view, this is a serious or worst case of wilful murder where the maximum penalty should have been imposed like, in Goli Golu’s case (supra).

20. We must say however, that the Appellants are very fortunate to have been given life imprisonment sentences. They could have been sentenced to death for the crime they had committed in the light of the aggravating factors operating against them cited above. This Court can even quash the sentences of life imprisonment and substitute them with the death penalty in each case because it has such power under section 23(4) cited above given the presence of serious aggravating factors in these appeals. The appellants as with any other appellant in a criminal appeal, must seriously consider the repercussions by the Court, in the event an appeal is dismissed, one of which is that the Court may increase the sentence. In a case such as this where an innocent, unsuspecting human being’s life was taken by a gun shot fired at close range, by persons who had no concern at all for the victim, but to just shoot him,, in cold blood, that they must pay the ultimate price by mans laws, and that is, to be imprisoned for a long time. Of course, as they are all Christians, they are aware that another sentence awaits them to be metted out by God, who is just.

21. But they must be grateful too that, at the same time, the National Court is given a discretion to impose a lesser penalty by virtue of section 19 of the Criminal Code. We accept the learned trial judge’s finding that the crime of wilful murder fell into the worst category of wilful murder cases, therefore calling for the maximum penalty of death. The Appellants must be grateful that the learned trial judge did not impose the maximum penalty because in our view, this case fell into the serious or worst category of wilful murder which warranted the death penalty.

22. In our view, it does not make any difference that they should be given lesser penalty because they were not the ones who "pulled the trigger" of the pistol. His Honour was correct to say that they are all equally guilty of the crime when he referred to the Supreme Court case of Gimble -v- The State [1988-89] PNGLR 271 at pp 9-10 of the written judgment on sentence which is found at pp 374-375 of the Appeal Book. The general rule is that, all active participants in the crime will be sentenced in the same manner, albeit, 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 get-away vehicle. All are equally guilty because without each playing his full part, the crime could not have been perpetrated. This is what his Honour said:

"It is not intended to canvass all the submissions put forth by the prosecution, however the basis for the prosecution’s call for the death penalty in this case stems from what the Supreme Court said in Ukukul Gimble -v- The State [1988-89] PNGLR 271 at 273 where the Court held:

‘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 participant 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 get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.’

In adopting this principle and urging the Court to impose the death penalty, the State acknowledged that the three prisoners did not pull the trigger, nevertheless they are equally responsible as the gunman, Emmanuel Jawagi Goria, therefore it is further submitted that the death penalty which is fitting for Goria should therefore be imposed on these three prisoners. "

23. His Honour concluded by accepting that the Supreme Court cases he had referred to were binding upon him but there are also some disparities on sentences as was evident in Goli Golu’s case (supra) where the prisoner was given 13 years imprisonment sentence on appeal from a life imprisonment sentence. This is what his Honour said at pp 17-18 of the written judgment on sentence which is found at pp 382-383 of the Appeal Book:

"Let there be no doubt in anyone’s mind that the principles of law that I have adverted to in the judgments of the Supreme Court I have cited are binding on this Court. In particular, the principle enunciated in Gimble (supra). By virtue of that principle these prisoners should normally receive the same sentence as the gunman. However, I think there can be disparity on sentences in some cases as is evident in Goli Golu (supra). Having said that, I consider that this case falls within the most serious of wilful murder cases as previously adverted to. There was simply no reason at all for this killing. It was a cold blooded killing and a heinous and callous crime that is the prisoners do not receive the maximum death penalty, they should get the near maximum." (Emphasis added).

24. It is plainly clear from the above statement that his Honour had correctly applied the principles of aiding and abetting in the present case. We find no error in the learned trial judge’s application of the law to the circumstances of these cases as far as sentencing of a principal offender is concerned.

25. In respect of the second contention by the Appellants that the learned trial judge failed to take into account the question of rehabilitation, we note that this contention is premised in a way that a sentence of life imprisonment is seen as harsh and excessive when weighed against the Appellants’ youthfulness. Given the Appellants’ contention, have the Appellants established a case where the learned trial judge failed to take into account the question of rehabilitation in his consideration of sentence, thus falling into error sufficient to render the sentence harsh and excessive or severe?

26. We have considered the reasoning of the learned trial judge and find that his Honour had in fact taken into account the question of rehabilitation of the Appellants in his deliberation as against their youthfulness. This is how his Honour considered the question after he referred to the Supreme Court cases of Paulus Mandatititip & Anor -v- The State [1978] PNGLR 128 and Peter Naibiri & Kutoi Soti Apia -v- The State (1978) SC 178 at pp 15-17 of the written judgment on sentence which is found at pp 380-382 of the Appeal Book:

"I do not consider that ‘youth’ can still be a good mitigating factor in serious cases like willful murder. In Paulus Mandatititip & Anor -v- The State [1978] PNGLR 128; the Supreme Court said that deterrent sentences are required where the offence is prevalence and youthful offenders should not receive special treatment unless exceptional circumstances which call for leniency. In the present case, I see no exceptional circumstances which warrant a term of imprisonment other than life imprisonment, if not the death penalty. In Peter Naibiri & Kutoi Soti Apia -v- The State (1978) SC 178, the Supreme Court had the occasion to consider the above case. "

27. Once again, we have taken the liberty to cite the relevant parts of his Honour’s reasons in relation to the question of rehabilitation in light of the Appellants’ youthfulness to show that first, his Honour did take into account the plea for leniency on the grounds of rehabilitation in light of their youthfulness where the Appellants were aged 20 and 16 years respectively at the time of trial. Therefore, his Honour did take into account their youthfulness. We find that there is no basis for the complaint. Secondly, that in so doing, we find that his Honour did not fall into error in imposing life imprisonment in light of the serious aggravating factors operating against the appellant, which we have referred to already in the judgment. For these reasons, we find no error here.

28. In the end, we are unable to find any identifiable errors made by the learned trial judge. It follows that, we are not persuaded that the sentence imposed by the learned trial judge for each Appellant was severe or harsh and excessive in the circumstances of the case under consideration. We dismiss the appeals and confirm the sentence of life imprisonment.

Orders accordingly.

___________________________________________

Appellants in person
Acting Public Prosecutor: Lawyers for the Respondent