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State v Nobudi [2002] PGNC 1; N2510 (24 December 2002)

N2510

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1174 of 2000

THE STATE

-v-

WESLEY NOBUDI
JOHN LULU EVOA &
FRANKY YALIKITI FRAVO

Waigani : Sevua, J
2nd, 6th, 12th & 19th December 2002

CRIMINAL LAW – Sentence – Wilful murder – Principal offenders - Death resulting after commission of armed robbery.

SENTENCE – Youthful offenders – Youth as a mitigating factor – Whether the "Youth" mitigating factor should be considered in serious violent crimes.

Cases cited:
Secretary for Law v. Witrasep Binenjing [1975] PNGLR 172.
Porewa Wani v. The State [1979] PNGLR 593.
Goli Golu v. The State [1979] PNGLR 653.
William Ukukul Gimble v. The State [1988-89] PNGLR 271
Ure Hane v. The State [1984] PNGLR 105.
The State v. Ian Napolean Seteb; N1478, 31st October 1996
Paulus Mandatititip & Anor v. The State [1978] PNGLR 128.
Peter Naibiri and Kutoi Soti Apia; SC137, 25th October 1978.

Counsel:
P. Kaluwin for the State
F.Pitpit with I.Geita for the Prisoners

24th December 2002

SEVUA, J: On the 13th November 2002 this Court found the prisoners guilty of the wilful murder of Robert Yamang contrary to Section 299 (2) of the Criminal Code by operation of Section 7 of the Criminal Code. It is now the duty of the Court to sentence the prisoners for this crime.

The judgment of the Court on verdict delivered on 13th November this year contains various findings of facts and conclusions drawn from those facts, therefore it is not intended to repeat those facts here save to highlight some of them for the purpose of sentence. Those facts and conclusions are matters of record. A summary of the facts will be sufficient here for this purpose.

On the 18th April 2000, the deceased, Robert Yamang, was killed instantly in front of his home at Gerehu Stage 3B in the National Capital District. He was shot dead at point blank by one Emmanuel Jawagi Goria with a factory made pistol. Emmanuel Goria also known by his friends by his alias "Emmex" escaped from prison so was not amongst these three prisoners during this trial. On the morning of 18th April 2000, Emmanuel Goria with three others still at large, Lawrence Aitsi, Peter and Morgan, whose surnames are not known, met with the prisoners at Waikele Bus Stop and planned to steal motor vehicles in the Gerehu area that morning. At that time, Emmanuel Goria was armed with a factory made pistol while Morgan had a home made pistol. After they all had agreed to this plan they set out towards Stage 3B to execute their plan.

At Stage 3B the prisoners and the others committed the first robbery. They robbed two female occupants of their vehicle, a green Mitsubishi sedan, which was driven by Lawrence Aitsi towards Stage 4. These prisoners and the others were in the stolen sedan. As they drove down the street, they saw the deceased in his white Nissan Sunny sedan parked outside his gate. He was still seated in the driver’s seat and his engine was still running. The stolen Mitsubishi sedan then stopped near the deceased’s car and angle parked in the front so as to prevent the Nissan sedan from moving forward. The reason the prisoners and their companions stopped near the deceased was to rob him of his vehicle too. This aspect of the case is relevant to the issue of whether the prisoners were to be convicted of wilful murder by virtue of Section 7 or Section 8 of the Criminal Code, and this is set out in some detail in the judgment on verdict.

In front of the deceased’s house, but outside his gate, and in the full view of his wife and children, the prisoners Wesley Nobudi and Franky Yalikiti Fravo, with Emmanuel Goria and Morgan alighted from the stolen Mitsubishi sedan and effected the second robbery against the deceased. The deceased was forced out his car, his wallet stolen, and Franky Yalikiti Fravo got into the driver’s seat while Wesley Nobudi ran to the back seat after one of the deceased’s son (Canute Yamang), and a principal prosecution witness had recognized and called out to him that they knew who he was. The prisoner, John Lulu Evoa with Lawrence Aitsi and Peter remained in the stolen green Mitsubishi.

After Wesley Nobudi, Franky Yalikiti Fravo and Morgan had seated in the deceased’s Nissan Sunny sedan, Emmanuel Goria then followed the deceased who was walking back towards his gate. It must be reiterated at this juncture that, at this point in time, the common purpose formed by the prisoners and their friends had been achieved and they should have left soon after robbing the deceased. It should also be reiterated that this is an important factor in considering whether the prisoners were guilty as principal offenders by virtue of Section 7 of the Criminal Code. As lead counsel for the prisoners, Mr. Pitpit puts it, principal offenders in the second degree, which I assumed he was basing on the common law principle of first and second degree homicide depending on the degree of the perpetrators’ participation in the crime.

Near the deceased’s gate in front of his house, and whilst the deceased’s wife and children were watching from under their house, Emmanuel Goria tapped the deceased on his right shoulder and as the deceased turned his head backward, Goria shot the deceased on the right side of the head. The deceased fell and died instantly. The injury to the head was the cause of death as reported by Dr Jacob Morewaya who conducted the autopsy.

Again it is not necessary to delve into the discussions on Section 7 and Section 8 of the Criminal Code as this has been done in my judgment on verdict. Nevertheless, it needs to be reiterated and re-emphasized that the presence of the prisoners at the scene of the killing rendered them guilty as principal offenders by virtue of Section 7. This issue is discussed on pages 17 to 21 of my judgment on verdict. So, whilst I accept the prisoners’ counsel’s submission that the three prisoners did not pull the trigger, I have not found as a fact that they did, thus there is no dispute as to that fact. However, it is vital to the whole case, and I hope the prisoners fully comprehend and understand that they were convicted as principal offenders by operation of Section 7, and not because they pulled the trigger. I say this also in the light of each prisoner’s statement in allocutus that he did not intend to kill the deceased, which is tantamount to the prisoners maintaining their innocence even after they had been convicted of the most heinous and callous crime which carries the death penalty.

The defence counsel has advanced a number of submissions and referred to a number of cases in respect of the question whether this is one of the most serious cases of wilful murder warranting the maximum penalty of death. I will be referring to a few of the cases he cited in his submissions. But first of all, Mr. Pitpit submitted that in considering whether or not the maximum penalty should be imposed, the Court should consider the following principles:-

(1) look at the offence and determine if it is a serious offence;

(2) look at the particular case before the Court to form a judgment if it is one that falls within the most serious type of cases category; and

(3) look at the particular offenders and decide if he or she deserves the maximum punishment prescribed.

In relation to the first principle, it was submitted that wilful murder is a serious homicide as it involves intention to kill and the defence acknowledged that wilful murder is a very serious crime. In respect of the second principle, Mr. Pitpit submitted this case can be categorized as one of the most serious wilful murder since the killing was perpetrated soon after an armed robbery; firearms were used; the killing took place in full view of the deceased’s family, and although there appeared to be no clear motive, it was an execution type killing. Counsel admitted and acknowledged that this case could be viewed as one of the most serious offence.

Thirdly, counsel went through the personal antecedents of each prisoner. Wesley Nobudi is 18 years old but was 16 at the time of the killing. He came from Kerawa Village, Boiken, East Sepik Province. He has been living with a brother at Gerehu Stage 3B for 5 years until 18th April 2000 when he was apprehended for this crime. He only managed to reach Grade 7 in school and was unemployed at the time of this offence. He has no prior conviction. Franky Yalikiti Fravo is aged 18 years but was 16 at the time of this offence. He comes from, Maprik in East Sepik Province and resided with his parents at Gerehu Stage 6 until 19th April 2000 when apprehended. At the time of this offence he was a Grade 9 student at Don Bosco Technical College. He has no prior record of criminal conviction. John Lulu Evoa is from Lelefiru, Gulf Province and is aged 22 years, but was 20 at the time of this crime. He lived with his parents at Gerehu Stage 6 until his arrest on 19th April 2000. He did Grade 10 at Don Bosco, however due to financial difficulties, he could not continue. He obtained part time employment with Department of Works, but was subsequently laid off for financial reasons. He too has no prior conviction.

Counsel submitted that in taking into account the facts of this case, the prisoners were not the ring leaders and master minders of the armed robberies, but Emmanuel Goria was. They were not armed during the killing and the pistols were in the possession of Emmanuel Goria and Morgan. The prisoners did not fire the fatal shot that killed the deceased, and the Court had found that Emmanuel Goria had shot the deceased. It was further submitted that the three prisoners did not have any preconceived plans to kill the deceased, Robert Yamang. Counsel further submitted that although there was evidence that someone had shouted from the deceased’s vehicle urging Emmanuel Goria to shoot the deceased, that evidence fell short of identifying who had actually urged Emmanuel Goria to shoot the deceased. It could not be clearly ascertained if it was one of the three prisoners who had urged Goria. The Court has been asked to give the benefit of doubt to the prisoners and to find that none of them had urged Goria to shoot the deceased. It was contended that looking at the incident realistically; there would have been no time for the prisoners to consult each other as to whether or not Emmanuel should shoot the deceased.

The Court has been asked to accept that the prisoners were "passive participants" in the sense that they did not expect Emmanuel Goria to shoot the deceased. Counsel submitted that there should be some doubts as to whether the prisoners believed that Emmanuel Goria would shoot the deceased. It was also submitted that it was highly possible they did not expect Goria to shoot therefore I should find the prisoners as "passive participants" in the wilful murder as they did not actively encouraged the shooting and they did not utter the words to Goria to shoot the deceased therefore they were unable to stop him. It was submitted that Emmanuel Goria acted on his own. One other reason the Court is asked to consider the prisoners as "passive participants" is that although Emmanuel Goria might have drawn support from the prisoners, they did not know this.

I understood that in addressing the personal antecedent of each prisoner, counsel implied that in looking at the third principle he had alluded to, each of the prisoner’s antecedent did not qualify him of deserving the maximum penalty prescribed by Section 299 (2) of the Criminal Code. It was also submitted that in considering the second principle alluded to by counsel, the prisoners’ case did not fall into the most serious wilful murder case category.

It has been submitted that as this Court had correctly and without prejudice, found the prisoners guilty under Section 7 as principal in the second degree, it can correctly assume that the maximum penalty is meant for the principal in the first degree while the lesser or alternative form of punishment is for the principal in the second degree. On that basis, the death penalty should not apply to these three prisoners as they are not principal in the first degree, but perhaps to Emmanuel Goria. Counsel therefore submitted that the death penalty is not warranted in this case and should not be applied.

Mr. Pitpit then cited cases under Section 7 for consideration. In Secretary for Law v. Witrasep Binenjing [1975] PNGLR 172; the prisoner was sentenced to 2 years but on appeal, the sentence was increased to 9 years. In Porewa Wani v. The State [1979] PNGLR 593; the prisoner was sentenced to 7 years while Avia Aihi was sentenced to life imprisonment and three others sentenced to 10 years 6 months. In Goli Golu v. The State [1979] PNGLR 653; the prisoner was sentenced to 15 years, but reduced to 13 years on appeal. Counsel therefore submitted that clearly there is a distinction in the sentences for a first degree principal and a principal in the second degree. In the present case, since the prisoners had been found guilty as principals in the second degree, the Court should not impose the maximum death penalty, nor should it impose the near maximum penalty of life imprisonment, however the Court can impose a penalty other than the maximum or near maximum.

Finally, Mr. Pitpit submitted that a determinate term of imprisonment is justified and that the Court should look at the lower range of sentence in wilful murder. Counsel however stop short of suggesting any fixed term of imprisonment.

Contrary to the defence submissions, counsel for the prosecution in the trial, Mr. Sambua who had filed written submissions, had submitted that the Court should impose the death penalty, and Mr. Kaluwin who appeared in place of Mr. Sambua had simply alluded to those submissions.

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 William Ukukul Gimble v. The State [1988-89] PNGLR 271 at 273 where the Court held:

"The general rule is that all active participants in a crime should be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim or held the gun, or an iron bar, or was a watchman outside or was the driver of the getaway 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 was further submitted that the death penalty which is fitting for Goria should therefore be imposed on these three prisoners.

The State’s submissions contain what I consider to be a fair complaint and criticism of the National Court in not imposing the death penalty in a number of very serious wilful murder cases. This Court takes note of this criticism and agrees that there have been very serious cases of wilful murder which the National Court could have imposed the maximum death penalty, however the various Judges constituting the National Court have failed to utilize that punishment. For my part, I consider that the time has come for Judges to be more responsive to the cries of the community and to seriously consider the death penalty in cases of wilful murder to demonstrate the sanctity of life that God has given. The cases are referred to in the written submissions from pages 6 to 9, which I need not cite however, the point is well taken and I hope that Judges of the National Court will seriously consider the State’s criticism.

The aggravating features of this case as submitted by the State are:-

(1) the prisoners 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) prevalent use of firearms in homicide cases and other violent crimes; and

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

I need only refer to two or three other cases which both Counsel cited before I consider what punishment I feel is appropriate to this crime. In Ure Hane v. The State [1984] PNGLR 105; the prisoner who was a lawyer in the Office of the Public Prosecutor was sentenced to life imprisonment following the murder of his de facto wife. The trial Judge considered that the killing was amongst the "worst type" of cases. On appeal, the Supreme Court reduced the sentence to 15 years. The Supreme Court held (1):

"When considering whether or not the maximum penalty should be imposed for wilful murder, the court should, insofar as the law allows, categorise those "worse type" cases for which the penalty of life imprisonment should be reserved and determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender."

It was in that same case that His Honour, Bredmeyer, J attempted to list the most serious kinds of wilful murder. The first kind of serious wilful murder was a wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape and the list goes on.

In Goli Golu v. The State [1979] PNGLR 653; the prisoner was sentenced to life imprisonment following a conviction for wilful murder. On appeal against sentence, the sentence was reduced to 13 years. The Supreme Court held (1):

"In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence."

It must be noted that in both cases, the maximum penalty for wilful murder then was life imprisonment. However, the law has since changed so that by virtue of sub-section (2) of Section 299 of the Criminal Code, the maximum penalty for wilful murder now is death. At the same time the Parliament amended Section 299, Section 19 was also amended so that by virtue of sub-section (1) (a), a person who is liable to death may be sentenced to life imprisonment or a shorter term.

I accept, on the basis of both counsel’s submissions, that this case falls into the most serious cases of wilful murder. I also accept, on the basis of the different categories of wilful murder stated in Ure Hane (supra) that this is a very serious case of wilful murder. However, I have always maintain that a homicide howsoever committed and under whatever circumstances and by whatever means, is always a very serious matter because it involves the premature termination of a life. To me the sanctity of life is far more important than the degree of killing and the kind of homicide charge preferred against an accused, be it manslaughter, murder or wilful murder. I expressed a similar view in The State v. Ian Napolean Seteb; N1478, 31st October 1996, when I sentenced a young first offender to 30 years imprisonment following a conviction for wilful murder.

In that judgment I observed that there were far too many incidents of reckless killings in the National Capital District. There is far too much of disrespect for human lives. Lethal weapons such as M16s, automatic rifles and pistols, both factory and home made and other dangerous weapons are being used to perpetrate serious violent crimes against humanity that, to the perpetrators, human lives meant next to nothing. Moral and social values are no longer the measure of today’s society and standard of living. The Court must act to protect what is seemingly the trend of prejudices against ordinary law abiding citizens who fall prey to human predators like these prisoners.

With the use of highly sophisticated weapons, the perpetration of serious homicides has transcended into new heights and I agree with my brother Kirriwom, J in sentencing Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi in Lae on 11th December 2002 on a murder conviction when His Honour said, "........ the complexity of criminal behaviour has transcended into new heights, which ignores social and moral values, let alone respect for another and his property. This social evil now pans out in the guise of revenge and emancipation of those who feel aggrieved as being neglected by the society or government as they go on the wild spree causing harm and injury upon others." And if I may add, causing unnecessary and unwarranted deaths upon innocent victims. His Honour imposed a 50 years sentence on the first two prisoners while the third prisoner was sentenced to 20 years.

The crime of wilful murder, and in fact, the three categories of homicide under the Criminal Code are very prevalent these days that perhaps the National Court should now do away with looking at a killing in the context of how serious it is before it imposes the maximum penalty of death in wilful murder cases. I think there is some sense in the State’s submission in the form of the question, "How serious or worse can a wilful murder be for the death penalty to be imposed?" Perhaps Parliament should now repeal Section 19 (2) of the Criminal Code, which gives a wide discretion to the Courts in sentencing for wilful murder, which provision was amended together with Section 299 (2) in 1993. By removing that discretion, Judges will have no choice and discretion, but to impose the death penalty in every wilful murder case.

After considering the prisoners’ statements in allocutus I can clearly discern that they are using the same old "youthfulness" argument in asking for leniency. However, I take a very serious view of this case. To my mind, this was an unprovoked and unwarranted killing. The deceased did not deserve to die in front of his wife and children like this. The prisoners and their friends had set out to steal motor vehicles on 18th April 2000. They had succeeded in robbing two female occupants of a green Mitsubishi sedan. Their second robbery of the deceased’s vehicle had also succeeded. They had accomplished what they planned to do. There was no need at all for Emmanuel Goria to shoot and kill the deceased. Similarly, there was no need for these three prisoners to remain and support Emmanuel Goria. Whilst I acknowledge that the prisoners were very young at the time of this crime, I consider that they ought to be treated like men if they are prepared to go to the extent of killing the deceased after they had robbed him of his car. As far as I am concerned, this was a callous and heinous crime that deserves the maximum penalty.

I do not consider that "youth" can still be a good mitigating factor in serious cases like wilful 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 there are 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 and Kutoi Soti Apia; SC 137, 25th October 1978, the Supreme Court had the occasion to consider the above case. The Supreme Court said at page 2:

"As was pointed out in Paulus Mandatititip & Anor v. The State ...... this Court finds difficulty in these days in accepting pleas of youthfulness to serious crime, and this must be so particularly in regard to violent crime of the most serious categories."

In the latter case, the two prisoners aged 17 and 19 years respectively were each sentenced to life imprisonment for the attempted murder of three policemen. Their appeal was dismissed. In addressing the issue of youthfulness, the Supreme Court observed that in Papua New Guinea society it is a fact that youths of 17 and 19 are frequently men accepting adult responsibility in society’s affairs. The Court further said that the two prisoners certainly did not behave like immature youths. This statement of the law underpins what I have alluded to earlier on in respect of the issue of youthfulness, and frankly, I am of the view that if youths are able to behave like men, they must accept the consequences like men, and not plead their youthfulness.

I accept that the prisoners were young offenders at the time of committing this crime, in particular, Wesley Nobudi and Franky Yalikiti Fravo. All three are first time offenders. However, an innocent man has had his life terminated prematurely. He has left a family without the support required to survive in modern Papua New Guinea. Besides, the deceased had a very promising career as a Bank Officer with Papua New Guinea Banking Corporation. Not only was his life taken prematurely, but his wife and children has suffered a great loss. He is dead and no amount of remorse, nor plea for leniency based on youthfulness, will ever bring him back to life. I believe that the penalty for this crime must reflect the serious view that Parliament took over loss of human lives when it amended Section 299 of the Criminal Code and fixed the maximum penalty for wilful murder as death. The punishment that this Court imposes must also reflect and demonstrate the community’s concern against wanton killing. Earlier on, I alluded to the sanctity of life, and I consider that the punishment for this crime must also be reflective of the importance and sanctity of life that God gave and, which no man has the right to deprive prematurely.

In the present case, the prisoners were convicted as principal offenders by operation of Section 7 of the Criminal Code. As I have found in my judgment on verdict, their presence near the premises of the deceased was not accidental, nor unwilled. They intentionally went there to commit robbery against the deceased. Two of their companions were armed with pistols and they knew about this before they set out on their mission. Surely, they all must have known that the pistols would be used if they encountered any resistance. The prisoners, as I have found, made no attempt to dissuade Emmanuel Goria from pursuing the deceased, and they had all the opportunity in the world to do that. They had the opportunity to leave the premises soon after they had committed robbery, however they chose not to. They did not become principal in the second degree by fluke. They are therefore as guilty as the man who pulled the trigger.

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 if the prisoners do not receive the maximum death penalty, they should get the near maximum.

I have seriously considered the personal antecedents of the prisoners and weighed them against the enormity of this callous crime. In my view, the action of the prisoners clearly demonstrated an apparent lack of respect for lives and property. When one considers the prisoners’ antecedents and their plea for leniency, such matters fade into insignificance. The prisoners have ruined a family and caused them a loss for the rest of their lives. The wife and children of the deceased will live with sorrow for the rest of their lives, and as I said, no amount of remorse can resurrect the deceased. I have also considered the prisoners’ counsel’s submissions and especially, his plea for a penalty other than death or life imprisonment. In my view, if this Court were to accede to those submissions, it will be failing in its duty to protect the community from such senseless criminals. It is my view that the time has come for the National Court to seriously consider the community’s call for tougher punishments for violent offenders.

It was only recently that our Parliamentarians were discussing the question of capital punishment for wilful murder and other serious violent crimes. Members of the community have been calling for tougher measures to counteract wilful murder. This crime is not only prevalent in the nation’s capital, but all over the country. Innocent law abiding citizens become helpless against gun totting criminals and the Court must be responsive to the community’s need to weed out this sick element from our society.

The Court has considered everything both in favour and against each prisoner. However, this was a senseless killing. It was unprovoked, unnecessary and unwarranted. A career Banking Officer had lost his life through no fault of his own. He has left behind a grieving family whose lives no doubt, will never be the same again. There was no justification whatsoever for this wanton killing. There can simply be no explanation as to the motive for killing other than an intention to kill.

Finally, I have seriously considered the maximum death penalty which the State had called for. The only reason I could not impose the death penalty is that the three prisoners did not pull the trigger. But for the reasons that I have stated, it is the judgment of this Court that the prisoners must receive the near maximum penalty. I am of the view that a strong deterrent sentence is necessary and appropriate in the circumstances, to punish the offenders as well as to send a message to like minded young people that the Court will deal decisively and sternly with offenders convicted of wilful murder. I therefore sentence the prisoners, Wesley Nobudi, Franky Yalikiti Fravo and John Lulu Evoa to life imprisonment.

Lawyer for State : Public Prosecutor
Lawyer for Prisoners : Public Solicitor