N2433

PAPUA NEW GUINEA

[In the National Court of Justice]

CIR No. 154 of 2002

THE STATE

- v -

Anos Naime Maraga
Hariki Badi
Gaigo Arua

WAIGANI: GAVARA-NANU, J
2002: 16th May & 2nd June

CRIMINAL LAW – Sentence – Wilful murder – Maximum penalty to be reserved for worst type of offences – Circumstances in which maximum penalty may or may not be imposed – Extenuating circumstances warranting sentence less than the maximum.

CRIMINAL LAW – Sentence – Wilful murder – Criminal Law (Compensation) Act, 1991, ss. 2 & 4, Compensation Ordered as part of sentence – Compensation Ordered to restore community relations and harmony. 

CRIMINAL LAW – Sentence – Wilful Murder – More than one Offender - Degree of participation in the crime to be reflected in the respective sentences imposed.

Cases Cited:
Ure Hane -v- The State [1984] PNGLR 105
Agiru Aieni and 12 Others -v- Paul T. Tahain [1978] PNGLR 37
Goli Golu -v- The State [1979] PNGLR 653.
Avia Aihi -v- The State (No. 3) [1982] PNGLR 92
Kuri Willie –v- The State [1987] PNGLR 298
The State -v- Nyama [1991] PNGLR 127
R -v- Herowa Poia & Ors [1964] PNGLR 187
Secretary for Law -v- Witsamp Binengain [1975] PNGLR 172
Passingan -v- Beaton [1971] PNGLR 206
The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65
The State -v- Morobet Aivui Koma and Peter Kevin [1987] PNGLR 262

Counsel:
A. Kupmain for the State
P. Pera for the Prisoners

SENTENCE

GAVARA-NANU, J: The accused have been convicted of the wilful murder of one Nicky Kelson, on 21st April, 2001, at the Baruni Tatana junction, contrary to s. 299 of the Criminal Code Act, chapter No. 262 (hereinafter referred to as ‘the Criminal Code’). The maximum penalty for this crime is death.

The circumstances in which this crime was committed have been fully canvassed in the judgment and I do not wish to repeat them here but for the purposes of determining the appropriate punishment for the accused, I will restate the relevant facts.

The deceased was killed in the afternoon of 21st April, 2001, by a bomb or an explosive devise (herein after referred to as ‘the bomb’), which exploded as he was bending down to pick up a stone from a pile of stones under which the bomb was planted by accused Anos Naime Maraga (hereinafter referred to as ‘Anos’) with the assistance of accused Hariki Badi (hereinafter referred to as ‘Hariki’) and accused Gaigo Arua (hereinafter referred to as ‘Gaigo’). In regard to Hariki, he assisted Anos by holding a gun and threatened the approaching Tatana people whom they had engaged in stone throwing fight along the Tatana causeway. He did that to keep the Tatana people at a distance to give Anos time to complete planting and concealing the bomb under the stones. And in regard to Gaigo, he assisted Anos with his presence as Anos was planting the bomb. He was also throwing stones at the approaching Tatana people also to keep them at a distance to give Anos time to complete planting and concealing the bomb. 

Thus, the actual planting of the bomb was done by Anos. He was the actual perpetrator of the crime and Hariki and Gaigo having assisted him, are caught by s. 7 of the Criminal Code.

The killing of the deceased was the culmination of the events which took place earlier that day. It all started when the windscreen of Mr Brian Adira’s tipper truck was damaged by some Tatana people in the morning when Mr Brian Adira who is from Baruni village went in his truck to visit his father in-law in Tatana village. After his windscreen was damaged, Mr Brian Adira went back to Baruni and told his father Mr Adira Gumasa about the incident. He then went to the Port Moresby Police Station with his father in law and reported the incident to the police. 

According to Anos, he started drinking beer with his brother from 10.30 am until 4.30 pm that day. He learnt of the incident regarding Mr Brian Adira’s vehicle at about 1.00 pm. Later in the afternoon, he went with Mr Brian Adira and other Baruni boys in Mr Brian Adira’s truck and fought the Tatana people at the Tatana causeway. That was when he planted the bomb.

In regard to Gaigo, he said, he slept until about 2.00 pm, and when he woke up, he heard about his uncle’s truck being damaged by the Tatana people. He later went to the Tatana causeway with Mr Adira Gumasa and Gaudi Adira. At the causeway, he helped other Baruni boys to fight the Tatana people.

Hariki said he was at the Rainbow Estate that morning. He drunk some beer there with Pispot Maraga for about three hours, then they went to Baruni. At Baruni, they continued drinking until about 4.00 pm. He later joined the other Baruni boys and went to the Tatana causeway and ended up taking part in the fight against the Tatana people. It was at that time, that he assisted Anos to plant the bomb.

It is to be noted that after the report was laid at the Port Moresby Police Station by Mr Brian Adira regarding the damage done to his truck by the Tatana people, the police went to the scene of the fight at the Tatana causeway. They got there while the fight was still in progress, but they did nothing to stop the fight or to arrest those who were involved in the fight. The police only went and escorted Mr Brian Adira’s family out of Tatana village.

According to the police, the Tatana people armed themselves with sticks and other weapons and set up road blocks along the causeway so they had to clear those road blocks to drive into Tatana village and back. The failure by the police to arrest or to stop the fight cannot be overlooked in determining the punishment for the accused, because had they stopped the fight or effected arrests, the whole incident may have been prevented.

 It is clear that the planting of the bomb under the pile of stones by Anos was deliberate. It was a trap because the two groups were throwing stones at each other in the fight and Anos knew that anyone from Tatana who picked up a stone from the pile of stones would be killed by the explosion, and that is what happened. The deceased who was pursuing the Baruni people was killed when the bomb exploded on his face as he was bending down to pick up a stone from that pile of stones to throw at the people from Baruni.

The decisions by Hariki and Gaigo to assist Anos in planting the bomb were also deliberate and they knew the possible fatal consequences of their actions. 

The crime of wilful murder is the most serious of homicide offences carrying the maximum penalty of death. However, the imposition of death penalty is subject to s. 19 of the Criminal Code, which provides for lesser forms of punishment, if there are mitigating circumstances. It is a trite sentencing principle that the penalty imposed by the Court must fit the crime. And to arrive at the appropriate punishment, all the circumstances of the case must be carefully taken into account. This equates with the principle that each case must be decided on its own merits.

Anos is now 25 years old while Hariki and Gaigo are both 18 years old. They are all first offenders. At the time of the offence, Anos was 23 years old and Hariki and Gaigo were 16 years old. Hariki was at Gerehu High School, doing Grade 9 and Gaigo was doing Grade 10 at the College of Distant Education. In case of Anos, he has Grade 6 education and was privately employed as a heavy equipment operator. All three accused are young and in the case of Hariki and Gaigo, they are still in their youth.

Mr Kupmain earlier urged me to impose the maximum penalty of death on all the accused. But after seeing the Probation Officer’s Means Assessment Reports on each of the accused, he submitted that life imprisonment may be appropriate. The Court requested those reports in order to determine as to whether compensation can be Ordered against the accused as part of their sentences, pursuant to ss. 2 and 4 of the Criminal Law (Compensation) Act, 1991.

In their respective Means Assessment reports, the accused said they are able to pay the maximum K 5,000.00, compensation in cash, if so ordered by the Court. They each said they have the money available.

It is the established principle of sentencing that the maximum penalty or punishment must be reserved for the worst type of offences. See Agiru Aieni and 12 Others -v- Paul T. Tohain [1978] PNGLR 37, Goli Golu -v- the State [1979] PNGLR 653, Avia Aihi -v- The State (No. 3) [1983] PNGLR 92 and Ure Hane -v- The State [1984] PNGLR 105. 

In Agiru Aieni and 12 Others -v- Paul T. Tohain (supra), Wilson J. after stating the principle said, to apply the principle properly, the Court must inquire into how seriously the particular accused was involved in the offence, then the extent to which the accused was culpable. In other words, the extent to which the accused participated in the crime. This principle is significant in this case because, Anos was the only actual perpetrator of the crime while Hariki and Gaigo have been found guilty because they aided Anos. 

In Goli Golu -v- The State [supra], the prisoner was a first offender. He was convicted of wilful murder of the deceased in the Court premises during Court hearing at Kwikila. The trial judge acknowledged that the prisoner was a first offender but emphasized on the need to impose a retributive and deterrent punishment and made particular reference to the killing being done during Court hearing and in the Court premises . His Honour went on to impose the maximum punishment, which at that time was life. 

On appeal, the Supreme Court substituted life imprisonment with 13 years in hard labour. The Supreme Court among other things said that, life imprisonment was excessive and was not proportionate to the prisoner’s crime. Obviously, the Supreme Court based its decision on the overall circumstances in which the crime was committed. There, the punishment imposed by the trial judge offended against the fundamental principle of sentencing that the accused must be given the punishment that is appropriate and fitting to his crime. The Supreme Court in discussing the factors which may render a case as the worst type, quoted from DA. Thomas on - ‘Principles of Sentencing’ - where the learned author said, the case must be of substantial gravity and that the offender had the tendency to commit grave crimes in the future and thus would be a danger to the community, if left at large or is released on fixed term sentence. The Supreme Court, said in such cases, life imprisonment which was the maximum penalty for wilful murder at that time would be justified to protect the community. 

The Supreme Court was thus of the view that Goli Goli’s case did not fall into such category of cases, hence the reduction of sentence from life imprisonment to 13 years in hard labour.

In Avia Aihi -v- The State (No. 3) (supra), the Supreme Court on the other hand affirmed the maximum sentence of life imprisonment imposed by the trial judge. The trial judge had noted that the crime was the worst type, accompanied by the most serious and aggravating circumstances. There, the Court found that the prisoner had meditated on the killing as she laid in ambush of the victim who was unarmed and attacked him with a knife. The deceased was under police escort and in the presence of the Chief Justice. They were part of the Court party, which was viewing the scene of the crime, which involved the deceased, when the prisoner and her accomplices fatally attacked the deceased.

The Court noted that the deceased was attacked by about 100 people including the prisoner. The deceased was stabbed three times by the prisoner with a razor sharp knife like a dagger. The killing was done with such determination that the prisoner disregarded the presence of the Court party which comprised of the Chief Justice, the police and the warders. The prisoner did not run away after fatally stabbing the deceased. She followed the Court party while covered with the blood from the deceased and made signs of cutting the neck. She showed no fear and respect for the law. The Supreme Court had no difficulty in finding that the punishment was proportionate and fitting to the prisoner’s crime. 

Applying the principles adopted by the Supreme Court in Goli Golu’s case, it was held in Avia Aihi -v- The State (supra) that the case was of substantial gravity and was of a worst type, thus attracted the maximum penalty of life.

In Ure Hane -v- The State [supra], Bredmeyer J. listed eight serious types of wilful murder cases which he said would attract the maximum penalty. First is where a wilful murder is committed in the course of committing another violent crime such as robbery, break and enter, rape and so on. Second is a wilful murder of a policeman or a prison warder while in the execution of his duty. Third is a wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody. Fourth is a wilful murder of a person in the custody of the police or Court. Fifth is the wilful murder of a completely innocent person in pay back killing. Sixth is a second or third murder. Seventh is a wilful murder committed by a person who has a long record of violence such that he is likely to commit such offences in the future and eighth is a wilful murder of the Governor General or the Prime Minister or any such leader. 

In that case, the prisoner who was a young lawyer, was sentenced to maximum penalty of life imprisonment by the trial judge for killing his young de facto wife by repeatedly stabbing her with a knife. It was established by evidence that the prisoner was under considerable pressure from the relatives of his de facto wife (deceased) to pay her bride price. His relationship with the deceased was also not approved by his own relatives, and they offered no support for him in their relationship. The prisoner was also put under pressure by the deceased’s relatives to meet other traditional obligations to support them. Overborne by those pressures and rejection, the prisoner was eventually driven emotionally and psychologically to kill the deceased. The Supreme Court held that in those circumstances, his crime was not the worst type and substituted life imprisonment with 15 years in hard labour.

In the more recent case of The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65, Woods J. refused to impose the maximum penalty of death and imposed life imprisonment after taking cognizant of the strong plea by the Public Prosecutor that the maximum penalty should not be imposed. 

His Honour regarded the plea by the Public Prosecutor as reflecting the attitude and the policy of the State and treated the wilful murder as not the worst type. There the prisoners ambushed the deceased and attacked him. The deceased was attacked when he went out of his house to check on some noises. He was chopped severely on the stomach by the accused and as a result later died in the hospital from the wounds. The deceased was innocent and unsuspecting. He was killed in pay back. 

In that case, the killing being unprovoked, was a worst type of wilful murder according to the examples given by Bredmeyer J. in Ure Hane’s case. But Woods J. got around that by treating the plea by the Public Prosecutor not to impose the maximum penalty, as being reflective of the State policy and imposed life imprisonment. The ratio of his Honour’s decision appears at pages 69 and 70:

"I see this case as just another example of the disorder and disrespect for the sanctity and dignity of human life, as emphasized in the Constitution. Such attitudes continually undermine peace and good order throughout areas of the country. Therefore, the penalty of death, as provided for in s. 299, could be considered. However, the Public Prosecutor has in effect, pleaded strongly against the death penalty. As he is the representative of the people and the State, I must regard his views as the policy of the government and the State. Further, as it is clear by the wording of Criminal Code s. 597 that the final decision on the death penalty is in the government through the National Executive Council, I must find that this could be seen as not a worst type case, and I must exercise the limited discretion I have under s. 19 and apply a term of years instead of the penalty as stated in s. 299.

There is only one term of years that I can consider in view of the circumstances of this case and the surrounding aspects, and that is life imprisonment"(my underlining).

With greatest of respect, I must say that I have difficulty in following the rationale behind the approach taken by his Honour in that case, because the approach appears inconsistent with the established principles. His Honour also appears to have misapplied s. 597 of the Criminal Code in so far as his Honour in the above utterance said that the decision on death penalty is made or is to be made by the government through the National Executive Council. Decision on sentence to death for the person convicted of a crime punishable by death under s.597 of the Criminal Code is a function exercised by the Court based on evidence presented to it. Only the place of hanging is to be decided by the Head of State acting on advice. These are implicit in the section, which provides:

597.	Sentence of death.

Subject to Section 598, the sentence to be pronounced on a person who is convicted of a crime punishable with death is that he be returned to his former custody, and that at a time and place to be appointed by the Head of State, acting on advice, he be hanged by the neck until he is dead.

Section 598 relates to recording of sentence of death.

Thus for the Court to effectively treat the plea by the Public Prosecutor as a mitigating factor by reason of it being supposedly reflective of the government policy was importing into consideration a factor or a matter which was irrelevant and unnecessary.

More over, there is no evidence that a government policy was put forward by the Public Prosecutor in his plea to the Court. His Honour appears to have simply treated the plea by the Public Prosecutor not to impose the death penalty as reflecting the government attitude and thus regarded it as a policy of the government

Also, the exercise of his Honour’s discretion under s. 19 of the Criminal Code could only be based on the facts and circumstances of the case before his Honour and not on any government policy which had no relevance to the case. 

It is unthinkable that, the government can come up with a policy, which is contrary to the laws made by the Parliament, which in that case is s. 299 of the Criminal Code. If there was such a policy, it would be bad as not being in the interest of the people or the public.

For these reasons, I must beg to differ from the approach adopted by his Honour in that case. 

The types of cases which Bredmeyer J. listed in the Ure Hane -v- The State (supra) are of course by no means exhaustive as there can be other cases in which the Court may consider that the maximum punishment is appropriate

Thus applying the principles I discussed above, I have come to the view that this case does not fall into the category of the worst type of wilful murder cases. It follows that the maximum penalty of death is not the appropriate punishment for the accused. I am also of the opinion that long fixed terms of imprisonment are appropriate instead of life imprisonment. 

I have come to this view because of the strong mitigating factors. For instance, the accused were all in a group, fighting against another group. It is not as if the accused fought only with the deceased and pursued him and killed him. The deceased and his friends were also the aggressors who were attacking the people from Baruni including the accused with stones when the deceased was fatally injured. In that regard, the deceased himself was also engaged in an unlawful and criminal act. The other factor is that the fight took place in the presence of the police who did nothing to stop it. 

Apart from these factors is that Mr Adira Gumasa who was an elder to the accused and the other Baruni boys did little if any, to stop the fight between the two groups. He told the Court that, at the Tatana causeway, he told the Baruni boys not to fight. But that to me was too little too late, because he could have exercised his authority in the village and stopped his son Mr Brian Adira from taking the boys including the accused to the causeway. I have no doubt that, had Mr Adira Gumasa done that, the whole incident could have been avoided. 

Mr Adira Gumasa also told the Court that he is a leader with authority and influence in Baruni village. He said, all the Baruni boys who took part in the fight, including the accused are closely related to each other and to him. And that appears to be the reason why they felt obligated to fight the Tatana people for damaging Mr Brian Adira’s vehicle. That is why he could have stopped the fight using his authority and influence.

Mr Brian Adira, also did nothing to stop the Baruni boys from fighting. In fact, he appears to have encouraged them to fight, because, he took them in his truck to the Baruni junction where they fought with the Tatana people. Hariki said, he loaded stones onto Mr Brian Adira’s truck when they went to the junction to use them in fighting the Tatana people. At the causeway, too, he did nothing to stop his boys from fighting. The root cause of the fight being the damage done to his vehicle by the Tatana people, I have no doubt that, had Mr Brian Adira stopped his people, the whole incident could have been avoided.

The actions of Anos in obtaining and planting the bomb could not have been done without the notice of the other Baruni people who were at the causeway. They must have seen or were at least aware of what he was doing. But that is mere speculation, because there is no evidence from the prosecution to show that others apart from accused Hariki and Gaigo had aided Anos or had known that Anos was planting of the bomb. 

All these are relevant mitigating factors, which I must take into account in determining sentences for the accused.

There is no evidence that the killing or the planting of the bomb was planned. Even if there was any planning at all, the extent of such planning can only be measured from the time when Anos became involved, which according to his evidence was sometime after 4.00 pm. That was a very short period of time.

The planting of the bomb is the most serious aggravating feature about this crime. But that is a single event which cannot be considered in isolation from the rest of the circumstances. And taking into account all the circumstances of the case, I have found that this wilful murder is not the worst of its type. It certainly does not fall into the category of the worst type of wilful murder cases listed by Bredmeyer J. in Ure Hane -v- The State (supra). 

The accused have good past records. I will take those into account in their favour. Further more, as noted, there is no evidence that they are likely to offend again or that they are a danger to the community, which would justify them being imprisoned for life. I think this is the case where the accused got carried away by their friends and relatives and went too far. This must weigh in their favour.

Whilst the sentences I impose on the accused must reflect the seriousness and the gravity of their crime, such sentences should not be crushing because of their youth particularly for Gaigo and Hariki. See Passingan -v- Beaton [1971] PNGLR 206. The sentences should also serve both as punishment and in some way to rehabilitate and correct them. See Kuri Willie -v- The State [1987] PNGLR 298 and The State -v- Nyama [1991] PNGLR 127, where this Court emphasized on the need for the Courts to impose sentences which would not only punish but to also rehabilitate the offenders, particularly where the offenders are in their youth. See also, The State -v- Morobet Awui Komia and Petro Kevein [1987] PNGLR 262 at p. 266.

I also consider that the sentences I impose must reflect the respective roles each of the accused played in the crime. For-instance, in the case of Anos, he was the one who made and planted the bomb. He first had the gun with which he threatened the Tatana people, he then gave the gun to Hariki who threaten the Tatana people while he planted the bomb. After Anos planted the bomb, he got the gun off Hariki and told him and Gaigo to run. Accused Gaigo’s participation in the crime was not the same as Hariki, but he was with them and was throwing stones at the Tatana people while Anos was planting the bomb. He then ran off with Hariki after Anos planted the bomb. These must attract different sentences. See R -v- Herowa Poia & Ors [1964] PNGLR 187. That was a pack rape case, where the person who played the leading role was sentenced to 12 years, while those who initially helped him but later committed the rape were sentenced to 11 years. Then in the case of Secretary for Law -v- Witsamp Binengaim [1975] PNGLR 172, the actual perpetrators of wilful murder were sentenced to 15 and 12 years in hard labour, while the wife of the deceased who agreed and arranged for her husband to be killed was given 9 years 6 months. These cases highlight the principle that the degree of involvement in the crime by the prisoners must be reflected in their respective sentences. See also, The State -v- Morobet Awui Koma and Peter Kevin (supra).

As part of the accuseds’ sentences I have considered ordering them to pay compensation. Consequently, I directed the Probation Officer to submit Means Assessment Reports in respect of each of the accused. I have received those reports and they indicate that the prisoners are able to immediately pay the maximum amount of K5,000.00 in compensation. They each say they have this amount of money available. I consider that s. 2 of the Criminal Law (Compensation) Act, 1991, empowers me to order compensation, even though the victim is dead. I have considered that pursuant to s. 2 (2) of that Act, compensation should be paid to the immediate family members of the deceased for the future good relations of the two villages; and to distil any further grudges or animosities which exist or may arise between the two villages, especially with the relatives of the accused and the deceased.

I note from the Means Assessment Reports that the mother of the deceased is willing to receive the compensation payments. I have been informed that the father has remarried and does not live with the family. 

So taking into account all the circumstances of the case, as I have outlined above, I sentence the accused as follows:- 

Anos is sentenced to 21 years in hard labour. I further order that he pay K 5,000.00 in compensation to the mother, brothers and sisters of the deceased. This money is to be paid by 16th June, 2003. I also fine Anos K2,500.00. He is given one month to pay the fine. Having spent 1 month in custody, I deduct that from his head sentence of 21 years. The balance of the sentence is 20 years 11 months. If the fine and the compensation are paid within the periods specified, then his sentence will be further reduced by 1 year 6 months, in which case, he will serve the balance of 18 years 5 months. But if he fails to pay the fine and compensation within the periods specified then he will serve the full balance of his term which is 20 years 11 months in hard labour.

Hariki is sentenced to 19 years in hard labour. I order that he pay K 3,500.00 in compensation to the mother, brothers and sisters of the deceased. This money is to be paid by 16th June, 2003. I also order that he pay fine of K 2,500.00. He is also given one month to pay the fine. As part of his fine, I order that his cash bail of K800.00 be forfeited to the State. He will therefore pay the balance of K 1,700.00 in fine. He also having spent 1 month in custody, I deduct that period from the 19 years in hard labour. The balance of his sentence is 18 years 11 months. If the fine and the compensation are paid within the periods specified, then his sentence will be further reduced by 1 year 6 months, in which case, he will serve the balance of 17 years 5 months. But if he does not pay the fine and the compensation within the periods specified then, he will serve the full balance of his term, which is 18 years 11 months in hard labour.

Gaigo is sentenced to 16 years in hard labour. I also order that he pay K 3,500.00 in compensation to the mother, brothers and sisters of the deceased. This money is to be paid by 16th June, 2003. I also order that he pay K 2,500.00 fine. As part of his fine, his cash bail of K 750.00 is forfeited to the State. He will therefore pay the balance of K1,750.00 in fine.. He is also given one month to pay the fine. He also having spent one month in custody, I deduct that period from his head sentence. He will therefore serve 15 years 11 months in hard labour. If the fine and the compensation are paid within the periods specified, then his sentence will be further reduced by 1 year 6 months, in which case he will serve the balance of 14 years 5 months. But, if he does not pay the fine and the compensation within the periods specified, then, he will serve the full balance of his term, which is 15 years 11 months in hard labour.

The fines are to be paid at the National Court Registry.

In regard to the compensation Ordered, I direct that they be paid within two weeks under the supervision of the Probation Officer. The Probation Officer will be at liberty to invite members of the police and the leaders of both communities in Tatana and Baruni to witness the payment. I will leave that to the discretion of the Probation Officer. I also leave it to the discretion of the Probation Officer to decide on the venue where the compensation payments are to be made.
____________________________________________________________________
Lawyer for the State:		Public Prosecutor
Lawyer for the Accused:	Public Solicitor