[1999] PNGLR 124

PAPUA NEW GUINEA

[national court of justice]

THE STATE

V

CLIVE SURUTE, CLIVE GUVERO, DIDIMUS SURUTE,
REDRICH GUVERO and HARRY ESEGATA

popondetta: vagi aj
8, 10, 15, 17 - 19, 23, 24 March 1999

CRIMINAL LAW – Sentence – Wilful murder-worse category of case – Objective facts and circumstances of wilful murder.

CRIMINAL LAW – Sentence – Consideration of mitigating factors –No prior conviction – Twenty years imprisonment.

Facts

The accused persons were found guilty of wilful murder of one Murray Toro. The accused persons at the trial elected not to testify in their defence after close of the prosecution case. The only matter for consideration was sentence.

Held

1.	The basic principle to be considered in determining punishment for an offence is that the punishment should be proportionate to the gravity of the offence committed. Goli Golu v The State [1979] PNGLR 653 applied.

2.	Whilst the maximum penalty prescribed by s 299 of the Criminal Code for wilful murder is death, on the facts, this case does not fall within the worse category of cases justifying imposition of the maximum penalty. Accused sentenced to twenty (20) years imprisonment with hard labour.

Papua New Guinea cases cited

Goli Golu v The State [1979] PNGLR 653.
Nomane v The State SCR 2/95 (Unreported).
The State v Tola Kini & Ors, Cr 1359/95 Unreported.
Ure Hane v The State [1984] PNGLR.

Counsel

R. Auka, for the State.
L Siminji, for the prisoners.

24 March 1999

Vagi aj. The prisoners appeared before me jointly. They were indicted upon one count of wilful murder as set forth in one indictment. On 2nd March 1996 at Mamba Estate, in Kokoda, they wilfully murdered Murray Toro, being an offence contrary to the provisions of s 299 of the Criminal Code. This offence carries the maximum penalty of sentence to death.

After a trial that took several days, each of the prisoners were found guilty of wilful murder of Murray Toro as charged. They are liable to be punished accordingly.

When the State closed its case, prisoners chose not to give evidence on their own behalf. This was their right. Their counsel, Mr Siminji, instead called Terence Irua to testify on their behalf. He gave sworn evidence to the effect that he was at the scene of the killing when he saw the prisoners Clive Guvero and Redrich Guvero, who are brothers, assaulted the deceased. He saw Clive Guvero stoned the deceased on his back, and Redrich Guvero struck the deceased with the head of an axe on his back. I do not find the evidence of this particular defence witness has any significant value to the prisoners’ case.

As a matter of history, it is appropriate to describe how the killing was done. In the early part of that evening the deceased, a known prison escapee went to the house that belonged to Clive Guvero and Redrich Guvero where he met their father, Frank Guvero. Here, the deceased demand motorcycle for Willie that was at Frank Guvero’s house. Frank Guvero refused him, then a fight ensued during which punches were exchanged and a stick was used. The fight ended when Frank Guvero was knocked into a condition of frailty. The news about his condition was an ignition to his two sons Clive and Redrich to seek the deceased everywhere at the Mamba Estate. In the process they found the other three prisoners Clive Surute, Didimus Surute and Harry Esegata with whom they mobilised and searched for the deceased. They were armed with various weapons and objects and they finally found him at the housing area near the volleyball court where they assaulted him. Here is how each prisoner participated in the assault as observed by the witnesses:

1.	Clive Surute plunged an iron open into the abdomen of the deceased;

2.	Clive Guvero hit the deceased on his back with a stone.

3.	Redrick Guvero struck the deceased with the head of the axe on the back.

4.	Didimus Surute hit the deceased with a stone on the back.

5.	Harry Esegata stabbed the deceased on his abdomen with a knife.

They acted in concert for the common purpose of killing the deceased who was then unarmed. In the trial there was an attempt by the defence to establish that the deceased had armed himself with a gun and terrorising the general population of the Mamba Estate, so that in retaliation, the people with the security personnel assaulted the deceased. I reject this as evidence on the basis that their only witness testifies that there was black bag believed to be for the deceased and when opened by the security supervisor in the presence of this witness the next day, there was a homemade gun and seven live cartridges found in the bag. There is no proof that the bag neither belonged to the deceased nor is there evidence that he was armed. The State eyewitnesses are part of the crowd that gathered to witness the assault of the deceased by the five prisoners.

I now consider the offence of wilful murder. Section 299 of the Criminal Code provides that, person sentenced, is liable for sentence to death. The Parliament in 1991 enacted the death sentence for wilful murder as the maximum penalty, as replacement to life imprisonment. It is to be borne in mind that the Parliament of this country in enacting the death sentence debated that it was consistent with the current community standard that for a person convicted of wilful murder he is to be sentenced to death in the same way as the deceased whose life he had ended. I agree, without dissent, with the general view, that the imposition of the maximum penalty for an offence, including the wilful murder, is a sentencing option and reserved for cases which can be properly characterised as falling within the "worse category of cases" for which that penalty is provided. Whether or not an offence falls into worse category of case, particular features such as wickedness of conduct must be determined by reference to the particular fact as the court finds them.

In Goli Golu v The State [1979] PNGLR 653, the Supreme Court held that in sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence. The basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence. In Golu’s case the appellant was sentence to life imprisonment for wilful murder that was committed by him on a member of the enemy clan that went to the Kwikila Court house where proceedings were to commence arising out of a riot between the appellant’s and the victim’s clans. At p 665, Wilson J said: "This crime, very grave as it was, was not in the category of the worse type of wilful murder case. A life sentence was in the circumstances manifestly excessive." In substitution for life imprisonment, sentence of twelve years and six months with hard labour was imposed. When the Supreme Court dealt with Golu’s case the maximum penalty for wilful murder was life imprisonment.

Two other cases of wilful murder counsel refer to are guideline of sentence only. The cases, Nomane v The State SCR 2/95, the Supreme Court, on 11th July 1995, imposed a sentence of thirty years, and, in The State v Tola Kini & Ors CR 1359/95, Los J imposed twenty two years. The sentences in these cases were in the average range. In Ure Hane v The State [1984] PNGLR 105, the Supreme Court reduced the sentence of life imprisonment to fifteen years.

In respect of which sentences to be imposed on these prisoners, it is necessary to consider other facts and circumstances as I find them. I am aware of the protection of human life and personal safety as a primary objective of the criminal justice system. I must have regard to the gravity of the offence viewed objectively when seeking to determine the appropriate sentence in this case. 

The deceased knew well before his death that the prisoners were searching for him. He therefore called out "who is looking for me with spear and axe". After the attack of Frank Guvero, the deceased went to his brother, Nickson Sosara’s house where Nickson refused him entry because his presence would bring chaos to the house if found there. Immediately after the prisoners attacked the deceased, Fredrick Forti took him away to his house where the security vehicle picked him up and took him to Kokoda Police Station, then later to the hospital where he died about 11:00 am on the next day.

At the time the security vehicle took the deceased to Kokoda Police Station, the prisoners Clive Guvero and Redrich Guvero accompanied him for the purpose of informing the police that the deceased was the "wanted man", a prison escapee, and about the attack of their father.

The particular aggravating feature where this case can fall into worse category is that there is element of planning to attack the deceased as a "payback" for an attack on Frank Guvero. Next, the weapons or objects with which they attacked the deceased were capable of causing death. One of the two weapons the spear or the knife caused the fatal injury. The evidence of Doctor Manaki of the Popondetta General Hospital shows there were multiple wounds in the body. There was a stab wound cutting through the spleen and the major blood vessels causing massive haemorrhage. The medical findings are consistent with the multiple wounds inflicted by five prisoners on the body of the deceased.

Finding that the case has characteristic of worse type, it is appropriate to advert to prisoners’ explanations on allocutus and their personal records on which to assess if any possible leniency can be attracted. Before counsel could provide their submissions on sentence, the prisoner Clive Surute has escaped from the court during lunch adjournment and counsel submit that this prisoner can be sentenced in his absence.

Clive Guvero says he is sorry for what he did to the deceased. He has been terminated from his employment at Mamba Estate as a cocoa pruner. His family is now displaced as a result of this killing. He is a married man and has two children. His parents are still alive. Since leaving school at Grade 6 he got employment at Mamba Estate from 1994 to 1996.

Didimus Surute says he is sorry particularly to the family of the deceased. He is 22 years old, single and the parents are still alive. He is the sixth child in the family of four brothers and four sisters. At the time of his arrest he finished from work at Mamba Estate.

Redrich Guvero says he is sorry for his part in the killing. He was at the village when his brother Clive Guvero told him about the assault of their father by the deceased. After checking the condition of his father at the house where he was also told about the deceased’s threat to return with a gun so he got armed with an axe and waited around their house for the return of the deceased. He is 22 years old single and both parents are still alive. At the time of his arrest he worked as a driver at Mamba Estate.

Harry Esegata says he has two children ages two and one respectively. His elder brother died some years ago and all the children of his deceased’s brother were in his custody because the widow re-married. He is very much concern about the welfare of these children including his owns two. He was also employed at the time of his arrest.

Clive Surute is the prisoner who has escaped. On his behalf counsel says the prisoner is 25 years old, a married man and has six children. He is the ninth child in the family of four brothers and four sisters. He was employed at Mamba Estate at the time of his arrest.

Each prisoner has no prior conviction. They are all first offenders. There is no evidence that any of them was affected by alcoholic drink or a drug at the time of the commission of the offence. All the prisoners are in the age group between twenty-two and twenty five years. The age of each prisoner is particularly relevant to the matter of sentencing. If the maximum penalty of death is imposed, their ages are not a matter anyone would be concerned about. Any other term of punishment, other than death, is optional in the circumstances of the case.

It is worthwhile making some general observation. If I find the level of culpability is so extreme, the community interest in retribution and punishment can be better met through the imposition of the maximum penalty. For any other, the sentence must be seen to fit the crime and should also accord with the general moral sense of the community. Next, there is rehabilitation, giving some hope from incarceration, which is important when taken into account in favour of the prisoner where there is some hope or prospect of rehabilitation. Emphasis must also be placed when sentences may operate as public deterrence and to ensure that those who should give into temptation be warned that severe punishment will be imposed.

So far as this case is concerned, I must give careful consideration to matters raised in mitigation on behalf of each prisoner. Although none of the prisoner had gained higher education, they were able to find employment and were able to support their families. There is no prior conviction recorded against them. They are in that context, first offenders. Their level of culpability may look so extreme but one factor I must take into account is the deceased’s own role in meeting his own demise. To a lesser degree there is "provocation" on the deceased’s part in inciting the prisoners by his action in assaulting Frank Guvero. Thus, in my opinion, the imposition of the severest of sentence of death would be manifestly excessive. Retribution, indeed for general deterrence, as well as for general moral sense of the community point to the direction that prisoners be given custodial sentence than what each prisoner has asked for; that is to place them on their own recognizance or on probation.

The next option I consider is whether, it is appropriate that the prisoners should spend the rest of their lives in imprisonment. As I have stated earlier, wickedness of conduct must be determined to the particular facts as found. I find spear and knife were plunged into the abdomen of the deceased. After the assault was over there was an extended suffering by the deceased over a period of over twelve hours before he died. Next, the remorse expresses by each prisoner is the indication of the value they now place on a human life. The sentences I will impose should also, I believe, reveal to the victim’s family that justice has been done. Further it is my hope that the bringing of justice of these five prisoners and their sentencing will bring some peace of mind and comfort to the general public of Mamba Estate and the Kokoda area.

Taking into account special circumstances favourable to the five prisoners I do not think it appropriate they should spend the rest of their lives in imprisonment. I think the sentences I must impose are at the average level and that is a term of twenty years in hard labour. I deduct two years nine months, the period they spent in pre-trial, remand and so the remaining period each of them will now serve is 17 years, 3 months as of today.

Lawyer for the prisoners: Public Solicitor.
Lawyer for the State: Public Prosecutor.