N2868

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1532-1541 OF 2003

THE STATE

V

JACKY VUTNAMUR AND KAKI KIALO (NO 2)

KIMBE: CANNINGS J
8, 23 JUNE, 21 JULY 2005

Criminal law – sentences – Criminal Code, Section 300 (murder) – sentences for two prisoners – one convicted after pleading not guilty, the other after pleading guilty – both members of a gang that committed armed robbery of a store – police officer murdered in course of the robbery – neither prisoner fired shots that killed deceased.

Criminal law – sentencing guidelines for murder cases – recent Supreme Court decisions – identification of starting point for head sentence – identification of relevant considerations – application of relevant considerations.

Criminal law – sentences – suspended sentences – immediate suspension inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete – each prisoner must serve minimum sentence after which suspension may be granted subject to conditions.

Two prisoners were each convicted of the murder of a police officer. The police officer was killed in a shootout with members of an armed gang who had just robbed a store at Kapiura, West New Britain. Both prisoners were members of the gang but neither fired the shots that killed the deceased. The first prisoner was the driver of a vehicle used by the gang. The second prisoner was armed and stood watch outside the store while others went inside. The first prisoner was convicted following a trial at which his defence of compulsion was rejected. The second prisoner pleaded guilty.

Held:

(1)	This was a serious case of murder but not in the worst-case category. 

(2)	Guidelines given in recent Supreme Court cases taken into account. Simon Kama v The State (2004) SC740 considered; Manu Kovi v The State (2005) SC789 applied. 

(3)	Strong mitigating factors in each case were that neither prisoner fired any shots or did anything that directly killed the deceased; enabling the starting point to be reduced from a range of 20 to 30 years, to 10 to 15 years.

(4)	The second prisoner’s surrender and confession to the police, his guilty plea and expression of genuine remorse were significant mitigating factors.

(5)	Both prisoners have strong family support and have made some attempt at reconciling with the deceased’s relatives but in the absence of special circumstances, neither sentence is ripe for immediate suspension.

(6)	The first prisoner is sentenced to 15 years imprisonment, with at least 9 years to be served.

(7)	The second prisoner is sentenced to 9 years imprisonment, with at least 5 years to be served.

Cases cited:
The following cases are cited in the judgment:

Charles Bougapa Ombusu v The State [1996] PNGLR 335
Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
The State v Jacky Vutnamur and Kaki Kialo (2005) N2848

Counsel:
L Rangan for the State
O Oiveka for the first co-accused
R Inua for the second co-accused

SENTENCES

CANNINGS J: 

INTRODUCTION

This is a decision on the sentences for two men convicted of murder. They are Jacky Vutnamur, the first prisoner, and Kaki Kialo, the second prisoner. They were convicted on 8 June 2005.

BACKGROUND 

The incident

The murder took place at Kapiura in the Bialla District of West New Britain, on the morning of Monday 5 May 2003. A police officer, Walter Ajimba, was shot and killed during the course of an armed robbery of the Kapiura Trading store.

The prisoners were members of a gang of about six men who committed the robbery. The day before, some members of the gang had stolen a Toyota Hilux utility and this was used to take them to the scene of the robbery and as a getaway vehicle. Earlier that morning the gang had gone to Salelubu and held up another police officer from whom they stole a pump action shotgun, cartridges and police uniforms, which they used in the robbery. That police officer was forced to go with the gang and travelled in the back of the utility to the scene of the robbery and murder, and later escaped to safety. 

Some gang members armed with firearms went inside the store, held up the staff, the manager and customers and stole K45,000.00 cash and K3,000.00 worth of store goods. They did not fire any shots while they were inside the store. They did not physically injure any staff members, customers or bystanders.

When the gang emerged from the store and were about to make their getaway, the police officer, Walter Ajimba attempted to apprehend them by firing shots from a gas gun. He struck one of the gang members but did not seriously injure him. Two of the gang members fired back and a shootout ensued, in the course of which Walter Ajimba was fatally injured. He was shot eight times. Neither of the prisoners fired the shots that killed Walter Ajimba. 

The first prisoner stayed in the vehicle at all times. He was the driver. He drove the vehicle to the scene of the robbery and murder and drove it away as the gang escaped. When other gang members were inside the store, he stayed in the vehicle. There was another gang member outside with him who was armed, keeping watch and guarding the police officer who the gang had brought along under threat. The first prisoner was unarmed. He did not talk to anyone. He did not threaten anyone.

The second prisoner was armed with a gun and kept watch at the doorway of the store while other gang members went in and held up the manager. He was still at the store when the shootout started. Then he escaped with the others. He did not physically injure anyone in the course of the robbery.

Later events

The first prisoner surrendered to the police five days after the robbery and murder. He admitted driving the vehicle used by the gang but denied being a member of the gang and said he was coerced into doing it. He maintained his innocence up to and during the trial.

The second prisoner surrendered to the police around the same time as the first. He confessed to his involvement and cooperated with the police in their investigations. 

Trial

On 18 May 2005 the two prisoners were brought before the National Court and jointly indicted for wilful murder under Section 299 of the Criminal Code. 

The first prisoner pleaded not guilty, so a trial was held. Witnesses were called and evidence adduced. His main defence of compulsion, under Section 32 of the Criminal Code, was rejected. He was convicted not of wilful murder, but murder, due to the combined effect of Sections 8, 300(1)(b) and 539(1) of the Criminal Code. The basis of the verdict was that he was involved with others in prosecuting an unlawful purpose (the armed robbery) and a person was killed intentionally by a member or members of the gang. What saved him from being convicted of wilful murder was the conclusion that the offence of wilful murder was not a probable consequence of the armed robbery (The State v Jacky Vutnamur and Kaki Kialo (2005) N2848).

The second prisoner pleaded guilty to wilful murder. However, in line with the verdict on the first prisoner I substituted his plea with a plea of guilty to murder and convicted him accordingly.

Other matters

Both prisoners were also charged with unlawful use of a motor vehicle, armed robbery and unlawful deprivation of liberty. They have not faced trial on those charges. The State has elected to proceed first with the charge of wilful murder, as Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence (Charles Bougapa Ombusu v The State [1996] PNGLR 335).

As for the other gang members, the court has been informed that the prime suspect in the actual killing of Walter Ajimba has since been shot dead. The identity of the other gang members is known but their whereabouts are not. The two prisoners presently being sentenced are the only members of the gang to have faced trial.

RELEVANT LAW

Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

•	a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

•	a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

•	the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

•	the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

•	the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)). 

ANTECEDENTS

Neither prisoner has any prior convictions.

ALLOCUTUS

I administered the allocutus, ie each prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment.

The first prisoner, Jacky Vutnamur, stated:

This is my first time to be in court. I was born in this province. This is where I grew up and got married. I was not in the initial plan to do this thing. But the court has found me guilty so I apologise to the court and ask for mercy. I have three character references to hand up, to show that I am not a bad person. I have never been in this sort of trouble before. I surrendered to the police and made their work easy.

The second prisoner, Kaki Kialo, stated:

This is my first time to be in trouble with the law. I do not have a bad name with the police. I am very sorry for what happened and I apologise to the police officer and his relatives but I did not kill him. I am married with two children and I have a 5-hectare oil palm block. I ask for the court’s mercy. Please consider a lenient sentence for me and put me on probation. I promise to this honourable court that this is my first and last time to be involved in this sort of trouble. 

SUBMISSIONS BY DEFENCE COUNSEL

The first prisoner, Jacky Vutnamur

Mr Oiveka highlighted the following mitigating factors:

•	Jacky Vutnamur was a passive participant in the crime. He did not shoot the deceased. Though he has been found to be criminally liable, he neither encouraged nor aided the acts of those directly responsible for the death of Walter Ajimba.

•	He surrendered soon after the incident took place.

•	He has expressed remorse.

•	The circumstances of the death were tragic but if the police officer had not opened fire on the escaping gang members, there would have been no need for them to fire back at him.

•	The sentencing guidelines for murder given by the Supreme Court in Simon Kama v The State (2004) SC740 Sevua J, Kandakasi J, Lenalia J are intended for cases in which the offender is the main perpetrator. The tariffs suggested by the Supreme Court need to be modified to take account of cases where the prisoner, as in the present case, has been convicted by virtue of Section 8 of the Criminal Code.

Mr Oiveka urged the court to impose a low-range sentence, much lower than what might be suggested by the Kama guidelines.

The second prisoner, Kaki Kialo

Mr Inua highlighted the following mitigating factors:

•	Kaki Kialo surrendered soon after the incident took place and immediately confessed and cooperated with the police.

•	He pleaded guilty.

•	He had no intention whatsoever of killing the deceased or anybody else and did not shoot anybody. 

•	He has expressed remorse.

•	He has paid compensation to the deceased’s relatives.

•	Though this case would, on the face of it, tend to fall within category (c) of the guidelines in Kama (a guilty plea with aggravating factors, eg use of firearms in the course of commission of another serious offence = 31 years to life imprisonment) the court should closely consider the minimal degree of involvement of the prisoner in the murder. Kama can be distinguished as there the offender had actually shot the deceased; and his appeal against a sentence of 25 years was dismissed. 

Mr Inua urged the court to impose a sentence much lower than the range of 31 years to life imprisonment.

SUBMISSIONS BY THE STATE

Mr Rangan, for the State, highlighted the following aggravating factors:

•	Each prisoner was guilty of murder in the worst degree. A police officer was killed in the course of performing his lawful duties. 

•	Though the second prisoner pleaded guilty, the court must not lose sight of the fact that a murder was committed. A guilty plea in a murder case does not get as much credit as it does with less serious offences (Kalabus v The State [1988] PNGLR 193, Supreme Court, Kidu CJ, Kapi DCJ, Woods J).

•	Though each prisoner expressed remorse, this was not done until the trial; particularly in the case of the first prisoner who prior to his allocutus had denied active involvement in the crimes.

•	It cannot properly be said that either of them was not actively involved. They were both members of the gang. The first prisoner drove the vehicle. The second was armed and stood watch while others went inside the store. They must be heavily penalised.

Mr Rangan concluded that the court should not bother trying to analyse the degree of involvement of each prisoner in what happened. They were both members of an armed gang who committed a serious robbery resulting in a police officer being murdered. They both deserve the same treatment. As this is a worst-case scenario they should each get life imprisonment. 

PRE-SENTENCE REPORT

To help me make decisions on the appropriate sentences I requested and received pre-sentence reports under Section 13(2) of the Probation Act in relation to each prisoner. The reports, prepared by the Kimbe office of the Community Correction and Rehabilitation Service, are summarised below.

The first prisoner, Jacky Vutnamur

Of Takekel, East New Britain heritage – raised in Buvussi, West New Britain – aged 26, married with two children – educated to Grade 8 at Hoskins Secondary School – never employed in the formal sector – parents still alive – father is a former police officer and knew the deceased well – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in Assemblies of God and South Seas Evangelical Church activities prior to commission of offence – a local volunteer Community and Rehabilitation Officer, Bonley Tiun has known the prisoner since childhood – no previous attitude or behavioural problems – surprised to hear about his involvement in the crime but a sociable person who gave in easily to friends.

The deceased’s wife, Linda Ajimba, was interviewed – neither offender had until recently paid compensation or apologised – compensation had recently been offered, but not enough, and negotiations are ongoing – confirmed that her family and the first prisoner’s family knew each other well – she has no desire for payback against the prisoner – but still carries the pain within her – her husband was in good health and his death is a great loss. 

Character references by Bonley Tiun, Senior Pastor Herman John, Buvussi AOG Church; and Alphonse Camillus, Youth Representative, Mosa Local-level Government, were all positive. 

The report concludes that there is strong family and community support at Buvussi for the offender if he is released into the community. He is a suitable candidate for probation supervision for an extended period. 

The second prisoner, Kaki Kialo

Of Suanumbu, East Sepik heritage – born and raised in West New Britain – aged 28, married with two children – educated to Grade 10 at Hoskins Secondary School – never employed in the formal sector – parents deceased, leaving behind an oil palm block – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in South Seas Evangelical Church activities prior to commission of offence – a church elder, Thomas Saltik, confirmed that the prisoner was once an active church member but had ‘back-slided’ – his wife and children are now suffering.

The deceased’s wife, Linda Ajimba, was interviewed – neither offender had until recently paid compensation or apologised – compensation had recently been offered, but not enough, and negotiations are ongoing – confirmed that the second prisoner’s relatives paid K500.00 cash on 21.06.05 and promised to pay another K500.00 soon – she has no desire for payback against the prisoner – but still carries the pain within her – her husband was in good health and his death is a great loss. 

Village peace officer at Kavui, Paul Kambari, was interviewed: prisoner is a hardworking person who socialises well and is involved in organising youth activities.

The report concludes that there is strong family support for the offender if he is released into the community. He is a suitable candidate for probation supervision subject to strict conditions. 

DECISION MAKING PROCESS

To determine the appropriate penalty for each prisoner I will adopt the following decision making process: 

•	step 1: what is the appropriate head sentence, in terms of years? 

•	step 2: should all or part of the sentence be suspended? 

•	step 3: if all or part of the sentence is suspended, what conditions should be imposed? 

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE? 

Approach

In setting an appropriate head sentence I will take this approach:

•	first I will identify an appropriate starting point; 

•	secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and 

•	thirdly I will apply those considerations to the circumstances of the prisoner, thus arriving at a head sentence. 

Starting point

The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases.

Firstly in Simon Kama v The State (2004) SC740, Sevua J, Kandakasi J, Lenalia J, the Court stated:

On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors, both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a)	Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b)	Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c)	Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d)	On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e)	On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f)	Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.

More recently the Supreme Court revisited the Kama guidelines in Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J. It was suggested that murder convictions could be put in four categories of increasing seriousness, as shown in the table blow.

SENTENCING GUIDELINES FOR MURDER DERIVED FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm	12-15 years	
2	Trial or plea – mitigating factors with aggravating factors	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness	16-20 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed	20-30 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life	Life imprisonment	

The guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits. I have considered Mr Oiveka’s submission that the guidelines in Kama are intended to cater for cases where the main perpetrator of the murder is being sentenced. However the Supreme Court did not make that distinction in Kama. Nor did it make the distinction in Kovi. I am obliged to use these guidelines as a starting point and then take into account the particular circumstances.

I reject Mr Rangan’s submission that this case falls into the worst-case category. Categorising the matter in that way would be to lose sight of the facts and disregard the guidelines in both Kama and Kovi. A police officer was killed in the course of duty, so it is a very serious matter. But neither of the prisoners physically and directly killed him and I do not feel that I would be dispensing justice if I ignored that. I also have difficulty with Mr Rangan’s submission that the second prisoner’s guilty plea should not count for anything as this is a murder case. That runs against the thinking of the Supreme Court in Kama and cuts across sound and sensible sentencing practices. I can imagine that in a very bad, vicious or pre-meditated wilful murder case the mitigating effect of a guilty plea might be negligible. But this is not such a case. 

I consider that the first prisoner’s case falls within category (f) of Kama, resulting in a sentence of 41 years to life imprisonment; and within category (3) of Kovi, resulting in a sentence of 20 to 30 years. 

The second prisoner’s case falls within category (c) of Kama, resulting in a sentence of 31 years to life imprisonment; and within category (3) of Kovi, resulting in a sentence of 20 to 30 years. 

As Kovi is the more recent decision I will apply its guidelines while at the same time paying close attention to the dicta in Kama. The starting point for each prisoner is therefore within the range of 20 to 30 years imprisonment. 

Relevant considerations

I will now set out the issues I consider should be taken into account when determining whether to increase or decrease the head sentence of each prisoner or leave it within the starting point range. 

The relevant considerations are:

1	Did the offender not directly kill the deceased?

2	Was just one person involved in the attack?

3	Was there some intervening cause of death?

4	Did the offender not set out to hurt anyone?

5	Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault the offender?

6	Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow, eg did the deceased have a thin skull or enlarged spleen?

7	Can the attack on the deceased be classed as ‘not vicious’?

8	Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in?

9	Did the offender play a relatively minor role in the activity that led to the death?

10	Did the offender give himself up and confess after the incident?

11	Did the offender cooperate with the police in their investigations?

12	Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

13	Has the offender pleaded guilty?

14	Has the offender genuinely expressed remorse?

15	Is this his first offence?

16	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

17	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale 

The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. 

Numbers 1 to 9 focus on the circumstances of the incident that led to the death. 

Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself. 

Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered. 

Application of considerations

I now apply the above considerations to each prisoner.

The first prisoner, Jacky Vutnamur

1	Yes the prisoner did not directly kill the deceased. Even though he is guilty of the murder of the deceased, I take into account as a significant mitigating factor that he did not fire any shots or do any act that directly led to the death of the deceased. 

2	No the prisoner was a member of an armed gang and several members of the gang had weapons, increasing the likelihood that someone would be shot. 

3	No there was no other intervening cause of death between two of the prisoner’s fellow gang members firing shots and the death of the deceased. 

4	No it cannot be said that the prisoner did not set out to hurt anyone. He was a member of an armed gang. Though he may not have wanted anyone killed during the course of the robbery, there is always a risk that that will happen.

5	No. Though Mr Oiveka argued that the deceased was only shot because he shot at the gang first, the deceased was a police officer doing his best to enforce the law and to apprehend the robbers. That cannot be regarded as provocation. 

6	No, there is no evidence that the deceased had a pre-existing condition making him susceptible to serious or fatal injury. He was in good health. 

7	No the attack on the deceased cannot be classed as ‘not vicious’. He was shot eight times.

8	No, I reiterate that the prisoner was knowingly involved in an armed gang that staged a planned robbery on a store. The gang did not enter the store with just their fists as weapons. They had guns. The risk of someone being killed – customers, staff, bystanders, or as it happened a police officer – was intrinsically high. 

9	Yes. Though he had a key role in the robbery, he had a small role in the actual death. There was no suggestion that he drove the vehicle in the direction of the deceased or in any way that directly facilitated the death. I accept Mr Oiveka’s submission that the prisoner was, in the relevant sense, a passive participant in the murder. 

10	Yes, he gave himself up, but no, he did not confess. 

11	Yes he has co-operated, but to a limited degree only.

12	Yes, his family has discussed compensation, but significantly, he has not apologised, even though the family of the deceased is well known to his family. 

13	No, he did not plead guilty.

14	No, it is not clear whether the prisoner is genuinely remorseful. All he said in his allocutus was that he apologised to the court. 

15	Yes, this is his first offence.

16	No he cannot be regarded as a youthful offender. He is an adult person who should have known better. 

17	No, there are no other circumstances that warrant mitigation of the sentence. There is good family and community support for him but this is a factor that is better left to take into account when deciding whether to suspend any part of the sentence. 

Taking all the above considerations into account, the strong mitigating factors that stand out are Nos 1 and 9. The first prisoner did not directly kill the deceased and he played a minor role in the activity – the shooting – that led to the death. I consider that it lies within my sentencing discretion to take these matters into account in a way that will result in a sentence lower than the range of 20 to 30 years suggested by the Kovi guidelines. For this sort of case I consider that a sentence in the range of 10 to 15 years is appropriate. 

When I look at the other factors, most of them are aggravating. I consider Nos 2, 4, 7 and 8 are significant aggravating factors. Nos 3, 5, 6, 13, 14, 16 and 17 are not significantly aggravating.

Nos 10, 11, 12 and 15 are mildly mitigating factors. 

I accordingly fix a head sentence for the first prisoner, Jacky Vutnamur, of 15 years imprisonment.

The second prisoner, Kaki Kialo

1	Yes the prisoner did not directly kill the deceased. Even though he is guilty of the murder of the deceased, and he was holding a firearm, he did not fire any shots. 

2	No the prisoner was a member of an armed gang and several members of the gang – including himself – had weapons, increasing the likelihood that someone would be shot. 

3	No there was no other intervening cause of death between two of the prisoner’s fellow gang members firing shots and the death of the deceased. 

4	No it cannot be said that the prisoner did not set out to hurt anyone. He was a member of an armed gang and he held a gun. Though he may not have wanted anyone killed during the course of the robbery, there is always a risk that that will happen.

5	No. Though the argument has been raised that the deceased was only shot because he shot at the gang first, he was a police officer doing his best to enforce the law and to apprehend the robbers. That cannot be regarded as provocation. 

6	No, there is no evidence that the deceased had a pre-existing condition making him susceptible to serious or fatal injury. He was in good health. 

7	No, the attack on the deceased cannot be classed as ‘not vicious’. He was shot eight times.

8	No, the prisoner was knowingly involved in an armed gang that staged a planned robbery on a store. The gang did not enter the store with just their fists as weapons. They took guns. The risk of someone being killed – customers, staff, bystanders, or as it happened a police officer – was intrinsically high. 

9	Yes. Though he had a key role in the robbery, he had a small role in the actual death. He fired no shots and was not at the actual scene of the shooting when it took place.

10	Yes, he gave himself up and immediately confessed. 

11	Yes he has co-operated fully with the police.

12	Yes, his family has discussed compensation with the deceased’s widow and children and a sum of money has been paid already. The sum of K500.00 is so small it can hardly be called compensation for the loss of a human life. However, it is a gesture of contrition and the money, it appears, has been accepted in good faith by the deceased’s widow. 

13	Yes he pleaded guilty.

14	Yes, the prisoner is genuinely remorseful. I can detect that from his immediate surrender and confession to the police; his cooperation with the police in their investigations; his guilty plea; and also his allocutus. He apologised to the relatives of the deceased in open court. He promised to the court that he would never be involved in this sort of thing again. 

15	Yes, this is his first offence.

16	No he cannot be regarded as a youthful offender. He is an adult person who should have known better. 

17	No, there are no other circumstances that warrant mitigation of the sentence. There is good family support for him but this is a factor that is better left to take into account when deciding whether to suspend any part of the sentence. 

Taking all the above considerations into account, the strong mitigating factors that stand out are Nos 1, 9, 10, 11, 12, 13 and 14. Nos 1 and 9 apply as they did in relation to the first prisoner. The second prisoner also did not directly kill the deceased and he played a minor role in the activity – the shooting – that led to the death. As explained earlier, for this sort of case I consider that a sentence of around the range of 10 to 15 years is appropriate. Nos 10 and 11 give credit to the prisoner for giving himself up and immediately confessing and then co-operating with the police. No 12 acknowledges the steps taken by his family to make a gesture of reconciliation with the deceased’s relatives, particularly his widow. No 13 acknowledges the effect of the guilty plea. I appreciate what Mr Rangan submitted about guilty pleas not being meaningful in murder cases but given the nature of the present case, I think it should be given considerable weight as a mitigating factor. Likewise with No 14 as the prisoner is genuinely remorseful. 

Nos 2, 4, 7 and 8 are significant aggravating factors, particularly Nos 2 and 4, as the prisoner carried a gun, unlike the first prisoner who was unarmed. Nos 3, 5, 6, 16 and 17 are not significantly aggravating.

No 15 is a mildly mitigating factor. 

There are many more mitigating factors for the second prisoner than there are for the first prisoner. The second prisoner will receive a lesser sentence than the first prisoner but the effect of the mitigating factors is offset to some degree by the fact that he was armed. 

I accordingly fix a head sentence for the second prisoner, Kaki Kialo, of 9 years imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCES BE SUSPENDED? 

Suspension now?

I have given this close consideration. However there are two things that convince me that it is not appropriate to suspend any part of either sentence at this stage. First, the seriousness of the offence. These are sentences for murder and there must be very special circumstances shown to warrant suspension; and none have been demonstrated. Secondly the process of reconciliation and compensation between the prisoners and the deceased’s widow and children is not complete. It is ongoing, which is understandable as the death occurred only a little over two years ago.

The answer to the question posed is no, neither of the head sentences will be suspended at this stage.

Suspension later?

I will nonetheless qualify each sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment, if before the expiration of the term prescribed, the National Court approves a post-release parole period with strict conditions attached.

This would be done if it were established that the prisoner had a good disciplinary record within the gaol in which he has been detained and if the reconciliation and compensation process referred to above had been satisfactorily concluded. 

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs and that he be of impeccable behaviour. 

I will set the following minimum periods that must be served:

•	the first prisoner, Jacky Vutnamur: nine years;

•	The second prisoner, Kaki Kialo: five years.

STEP 3 - IF ALL OR PART OF THE SENTENCE IS SUSPENDED, WHAT CONDITIONS SHOULD BE IMPOSED?

Step 3 of the sentencing process will not be considered at this stage.

SENTENCE

The Court makes the following order:

1	Jacky Vutnamur, having been convicted of the crime of murder, is sentenced to 15 years imprisonment in hard labour, 9 years of which must be served and the balance of 6 years of which may be suspended by order of the National Court if and when an application for suspension is granted.

2	Kaki Kialo, having been convicted of the crime of murder, is sentenced to 9 years imprisonment in hard labour, 5 years of which must be served and the balance of 4 years of which may be suspended by order of the National Court if and when an application for suspension is granted.

3	For the avoidance of doubt:

(a)	suspension of either of the above sentences will only come into effect if and when ordered by the National Court; and

(b)	there shall be deducted from the term of imprisonment the period in custody that the each prisoner has already spent in relation to this matter.

Sentenced accordingly.
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Lawyers for the State			:	Public Prosecutor
Lawyers for the accused		:	Public Solicitor