Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948 (28 May 2020)

SC1948

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NOS.66, 67, 72 & 73 OF 2018

BETWEEN:
AUPIN SUMAI, JOSEPH JIRANGU KWABEGI,
BULU SUMAI&JUSTIN YAKI WANJERI
Appellants

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Wewak: David, J, Makail, J & Gora, J
2020: 26^th & 28^th May

CRIMINAL LAW – appeals against sentence –co-appellants - convictions after trial to one count of wilful murder –identifiable error – deceased burnt down three houses belonging to one of the appellants – extenuating circumstance not taken into account in exercise of sentencing discretion–leave to appeal against sentences granted – appeals allowed - all head sentences reduced by 3 years – fresh warrants of commitment issued.

Cases Cited:
Norris v The State [1979] PNGLR 605
Gimble v The State (1988-89) PNGLR 271
The State v Tom Keroi Gurua (2002) N2312
Manu Kovi v The State (2005) SC789
Steven Loke Ume v the State (2006) SC836
The State vEdward Yau & Anor (2013) N2125
The State v Hemis Yau (2016) N6273

Counsel:
Ramsey Pariwa with Alex Kana, for the Appellants
Camillus Sambua with Raymond Galama, for the Respondent

JUDGMENT

28^th May, 2020

1. BY THE COURT: INTRODUCTION: On 9 August 2017, after a trial, the National Court found the appellants guilty and convicted them of one count of the wilful and unlawful murder of the late Christopher Hombimori (the deceased) at Yamiyanda village, Suambukau Ward in the Wewak District on 12 May 2014 under Section 299 of the Criminal Code. On 21November 2018, the National Court imposed varying custodial sentences upon each of the appellants to reflect the degree of culpability or participation in the overall circumstances of the offence of each of them in committing the crime. Joseph Jirangu Kwabegi was sentenced to 40 years in hard labour. Justin Yaki Wanjeri was sentenced to 32 years in hard labour. Bulu Sumai was sentenced to 28 years in hard labour. Aupin Sumai was sentenced to 20 years in hard labour.

2. Aggrieved by their convictions and sentences, all appellants filed separate notices of appeal within the statutory 40-day period. The appellant, Justin Yaki Wanjeri filed his notice of appeal on 29 November 2018. The appellants, Joseph Jirangu Kwabegi, Bulu Sumai andAupin Sumai filed their respective notices of appeal all on 3 December 2018.

3. At the commencement of the hearing, Mr. Pariwa of counsel for the appellants informed the Court that the appellants had decided to abandon their respective appeals on conviction. We accept the concession to abandon the respective appeals against conviction. The appeals against conviction by each appellant are therefore dismissed. We will now deal with the appeals against sentence only.

BRIEF BACKGROUND FACTS

4. The deceased was known in his community to be insane or mentally ill. On the morning of 12 May 2014 at Waiwaya village, Suambukau Ward near Wewak, he set fire to three bush material houses. These houses belonged to the appellant, Joseph Jirangu Kwabegi. The deceased’s actions angered the four appellants and two other co-offenders who altogether pursued him while armed with bush knives, spears and other deadly weapons. As they ran after the deceased, they shouted at him that they would kill him. When they caught up with the deceased, they struck him with the weapons they were armed with. The deceased managed to run into his house, but was dragged out of his house and the four appellants and two other co-offenders continued to strike him with their deadly weapons. The appellant Joseph Jirangu Kwabegi used a handle of a wheelbarrow to strike the deceased’s head while the co-appellants and the other two offenders used other weapons they were armed with to assault the deceased. The village people stopped the fight, but by then it was too late. The deceased died a short time afterwards as a direct result of the injuries he sustained. There was ample direct evidence to show that the appellants and their co-offenders all took part in the killing of the deceased. The appellants and the other two co-offenders were acting in concert, they aided and abetted each other so they were all also deemed to have taken part in committing the crime pursuant to Section 7 of the Criminal Code.

APPEALS AGAINST SENTENCE

5. Mr. Pariwa for the appellants argues that the sentences were manifestly excessive in light of the clearly indefinable error committed by the National Court when in exercising its sentencing discretion to impose an appropriate sentence for each appellant, it failed to give due consideration and weight to the extenuating circumstance of de facto provocation that prior to killing the deceased, he had burnt down, not one, but three houses belonging to one of the appellants for no reason at all. The burning down of the three houses was the root cause of the commission of the offence it was further argued. Mr. Pariwa suggested that all sentences imposed be discounted by five years.

6. Mr. Sambua for the respondent contended that no error was shown on the part of the National Court as it took into account the gravity of the offence committed and also it drew comparisons between the present case and others including the cases of The State v Hemis Yau (2016) N6273 and The State v Edward Yau & Anor (2013) N2125 to impose the types of sentence it imposed on each of the appellants.

7. In order to succeed on an appeal against sentence, the onus is on an appellant to demonstrate to the Court that the National Court made some identifiable error in law or fact in the course of exercising the sentencing discretion or that the sentence is manifestly excessive: Norris v The State [1979] PNGLR 605.

8. Generally, any sentence that is imposed by the National Court must be appropriate, just and fair and one that befits the crime taking into account all relevant aggravating and mitigating factors including any extenuating circumstances: Steven Loke Ume v the State (2006) SC836.

9. In Steven Loke Ume v the State (2000) SC836, this Court said:

“As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.”

10. At pp.220and 221 of the Appeal Book, the National Court noted that the extenuating circumstance, i.e., de-facto provocation presented before it by the appellants and their co-offenders for its consideration was that the burning down of the houses was the root cause of the commission of the crime and they urged the National Court to apply that in their favour together with the mitigating factors.

11. At p.223 paragraphs 13 to 15, the National Court said:

“And for the moment, my view is that your mitigating or your good points are not enough to help you for probation punishment; they are outweighed by your bad points.”

12. There is no express mention by the National Court that the extenuating circumstance of de facto provocation was taken into account. The expression “your good points” alluded to above is too general and creates an uncertainty as to whether or not the extenuating circumstance of de facto provocation was taken into account. The appellants should have the benefit of the uncertainty. Ultimately, we are satisfied that the appellants have demonstrated to the Court and that, with respect, the National Court made an error in law which had the effect of vitiating the National Court’s sentencing discretion.

13. Were the individual sentences manifestly excessive? The appellants urged the National Court to depart from the guidelines suggested in Manu Kovi v The State (2005) SC789 and impose appropriate sentences for each appellant and co-offenders that befitted the crime in light of prevailing circumstances there and then. On the other hand, the respondent urged the National Court to impose sentences between 30 to 40 years and that all the appellants and their co-offenders should be punished jointly and not separately.

14. The National Court was of the opinion that there were two schools of thought when considering sentences for multiple offenders who were involved in a crime together or in concert. That appears to be correct. Reference was made to Gimble v The State (1988-89) PNGLR 271 which propounds the view that “[t]he general rule is that all active participants in the crime should be sentenced on the same basis”. The National Court also referred to a National Court decision of The State v Tom Keroi Gurua (2002) N2312 which he said supports the view that sentences for co-offenders ought to be based on their degree of and extent of their participation or criminality, i.e., there was justification for disparity in sentences of co–offenders where one plays a minimal role in the commission of the offence than the other. We do not propose to enter into a debate to determine which of the two schools the National Court should have followed as we have not been requested by any of the parties to do so. However, it suffices to say that according to the doctrine of precedence, the decision of the Supreme Court in Gimble v The State (1988-89) PNGLR 271 is binding on the National Court. No issue has been taken by the appellants on this point either as a ground in their respective notices of appeal or in their submissions so we will not dwell on the matter any further than that.

15. The National Court followed The State v Tom Keroi Gurua (2002) N2312 and imposed sentences according to what it deemed as the varying degrees of participation or culpability by each appellant and their co-offenders.

16. It is useful to have regard to the sentencing guidelines suggested by this Court in Manu Kovi v The State (2005) SC789 and we have considered them. We have also considered the comparative cases on sentence considered by the National Court in arriving at the varying sentences. In Manu Kovi v The State (2005) SC789, the Supreme Court suggested that wilful murder sentences could be placed in four categories of increasing seriousness. The lowest is first category which concerns ordinary plea cases with mitigating factors, no aggravating factors, no weapons used, little or no pre-mediation or pre-planning, minimum force used and absence of strong intent to kill. A term of 15-20 years is suggested. The highest is the fourth category and it concerns the worst case scenario where there are present special aggravating factors, no extenuating circumstances, no mitigating factors, or mitigating factors rendered completely insignificant by the gravity of the offence and on a trial or plea, the death penalty may be imposed.

17. The maximum punishment of death is reserved for the worst case of wilful murder. We consider that this case does not fall in the worst category.

18. We think that this case was capable of falling within the third category as the facts of the case demonstrate that this was a brutal killing through a mob attack, killing of a harmless or defenceless person, dangerous or offensive weapons were used and there was a strong desire to kill and conviction was attained after a trial was conducted. However, the National Court in the exercise of its sentencing discretion under Section 19 of the Criminal Code, considered it appropriate to impose a term of years for each appellant and their co-offenders without taking into account the extenuating circumstance of de facto provocation. The upshot of that is that the sentences for each of the appellants was manifestly excessive in the circumstances.

19. It follows that each of the appellants is entitled to a discount of his sentence.

20. Section 23(4) of the Supreme Court Act gives the Court power to quash a sentence and impose another in substitution for it. That provision 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.”

21. We will grant leave to appeal against the respective sentences and allow the appeals. We will therefore quash all the sentences imposed by the National Court, discount all sentences by three years and pass in substitution for them, the following sentences:

1. Joseph Jirangu Kwabegi 37 years imprisonment in hard labour.

2. Justin Yaki Wanjeri 29 years imprisonment in hard labour.

3. Bulu Sumai 25 years imprisonment in hard labour.

4. Aupin Sumai 17 years imprisonment in hard labour.

ORDER

22. The formal orders of the Court are:

1. The appeals against conviction are dismissed.

2. The appeals against sentence are allowed.

3. The sentences imposed by the National Court on each of the appellants are quashed and substituted by the following sentences:

(a) Joseph Jirangu Kwabegi 37 years imprisonment in hard labour.

(b) Justin Yaki Wanjeri 29 years imprisonment in hard labour.

(c) Bulu Sumai 25 years in hard labour.

(d) Aupin Sumai 17 years in hard labour.

4. The warrants of commitment issued by the National Court for the respective sentences are revoked and are substituted by fresh warrants of commitment reflecting the new sentences.
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Public Solicitor: Lawyers for the Appellants
Public Prosecutor: Lawyers for the Respondent