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State v Waragu [2007] PGNC 134; N3265 (23 November 2007)

N3265

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 278 OF 2004

THE STATE

-V-

MICHAEL WARAGU

Kokopo: Lenalia, J.
2007: 16, 19 & 23 November

CRIMINAL LAW – Attempted Murder – Plea - Matters for consideration – Sentence – Criminal Code s.300 (1) (a).

CRIMINAL LAW – Attempted Murder – Sentence – Sentencing principles – Not a worse type case – Sentence of 25 years appropriate.

Cases cited
Awap Omowo & Warsa Yirihim [1976] PNGLR 188
Bokum Umba v The State (1976) SC92
The State v Paulus Mandatitip [1978] PNGLR 128
The State v John Badi Woli & Pengas Rakam [1978] PNGLR 51
Peter Naibiri & Kutoi v The State (1978) SC137
Porewa Wani v The State [1979] PNGLR 593
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Avia Aihi (N0.3) v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Mase v The State [1991] PNGLR 88
The State v Thomas Waim [1995] PNGLR 187
Joe Foe Leslie Leslie v The State (1998) SC650
Joseph Nimagi & 2 Ors. V The State (2004) SC741
The State v Elizah Ute (2004) N2550
The State v Frank Johnson Murray & 2 Ors. (2004) N2586

Counsels
Mr. Auka, for State.
T. Potoura, for the Accused.

SENTENCE

23 November, 2007

1. LENALIA, J: The prisoner pleaded guilty to two charges, one count of attempted murder and the second count for the charge of malicious injuries to a motor vehicle owned by Agmark Ltd in Kokopo. In both charges the State says that, the offences were committed at Malaguna village, Rabaul on the night of the 17th day of May 2003. These offences are contrary to s.304 and s.444 (1) of the Criminal Code.

2. The cases before me are two of the outstanding charges in relation to a killing of two persons that took place on the night of the above date at Malaguna No.1 village on the outskirts of Rabaul town. The prisoner was tried together with nine others for two charges of wilful murder. On 12th of December last year, this Court found seven of them not guilty and acquitted them while the prisoner and one Anton Marko were found guilty. (See my unnumbered and unreported judgment of The State v Michael Waragu & 9 Others (5.12.06) CR.Nos.1215 &278 of 2003).

3. On 7th of February this year, the prisoner and his accomplice were sentenced to terms of life imprisonment ordered to be served concurrently. (See unnumbered judgment dated 7th February 2007).

4. When this Court raised the issue of being familiar with the facts and evidence of the cases to which the prisoner had now pleaded guilty to, Mr. Potoura of counsel for the prisoner submitted that, the matter was coming by way of plea and the matter should be heard by this Court. The Court enquired with the prisoner. He said, it was alright for this Court to deal with his cases. Mr. Auka of counsel for the prosecution agreed and made no objection to the matter being prosecuted before this Court so long as it was not a trial.

5. On the basis of the above concurrences between the lawyers and the prisoner, the Court went ahead to read the charges to the accused. Upon arraignment, the accused entered guilty pleas to both charges on the indictment. The Court entered provisional guilty pleas and after the facts were tendered, the Court read them. The accused made very clear admissions in the record of interview to the charge of attempted killing and by complicity to the charge of wilful damage. I then confirmed both guilty pleas and convicted the prisoner.

Facts

6. On the above date, the State say that on the evening, between 7 and 8 pm, the prisoner was amongst the other nine co-accused acted in concert and wilfully killed the two deceased John Patem and Rebon Taule. The statement submitted by the victim in the case of attempted murder and the record of interview show that, Robert Tito, the victim on the first count was coming out from the Super Store in Rabaul town at 5 pm and met a person by the name of Peter Waira.

7. The said Peter Waira informed the victim that the two deceased wanted to see him. Peter directed Robert Tito to where the two deceased were sitting.

8. When Robert Tito went to the two deceased (John Patem and Rebon Taule), they gave him some beer and they all consumed beer for sometime. The two deceased then asked Robert to get on with them in the vehicle so they could drop off the deceased John Patem at Vunamami village in Kokopo. The three of them took off from Malaguna No.1 village to refuel at Bob Darrah’s Service Station. From there they took of and at a bottle shop at Malaguna N0.2, they stopped to buy some 6 packs of beer.

9. When they were ready to take off, an old man and his wife came and asked Rebon Taule who was the driver of the vehicle that night if they could be given a lift to Rapolo village just a few kilometres away. When the old man and his wife got into the vehicle, twelve young men also boarded with them. When the men got on, the driver asked them where they were going. They indicated that, they were also going to Rapolo village. They then drove to Rapolo village.

10. After the vehicle stopped at the above village, the old man and his wife alighted but the twelve young men did not get out of the vehicle. The gang started to argue with the driver, his off-sider and Robert that, they wanted to return to Malaguna No.2 village.

11. Rebon Taule and John Patem told the gang that, they were intending to drop off John Patem at Vunamami village. When the gang members heard that, Robert’s statement reveals that, the accused Anton Marko jumped off the vehicle and vigorously argued saying that him and his men should be driven back to were they were picked up. Rebon Taule and John Patem told the gang that, they were intending to drop off John Patem at Vunamami village and there was no way for them to turn back.

12. When the gang members heard that, the victim’s statement shows that, the accused Anton Marko jumped off the vehicle and vigorously argued saying that he and his men should be driven back to were they were picked up.

13. The prisoner of the wilful murder charges Anton Marko then swore at the three victims by saying in Pidgin ‘kaikai kan’ meaning eat or suck the females’ private part. After this, he cut the bonnet of the vehicle with a bush/knife and demanded that they be driven back to Malaguan No.2 village. When the driver, John Patem and Robert Tito perceived that, the gang was serious, they conferred amongst themselves and John agreed that they should return to base.

14. As they were going back, it is the State’s case that, because the three victims knew that accused Anton Marko had been an escapee, they knew that certainly they would be held up on their way back. Before reaching the Malaguan No.3 cement bridge, accused Anton Marko and his gang ordered the driver to stop at a dark place where there was no light nearby.

15. Having heard what was being said from the back of the vehicle, the victim, Robert Tito who was sitting inside the cabin in the middle of the driver and the off-sider all decided to wind up the glasses on each side of the doors to the cabin.

16. They did just that. Instead of stopping where they were ordered to stop, the two deceased and the victim decided to drive straight to Rabaul Police Station.

17. It is Robert Tito’s recollection that, between the Burma Road junction and the Malaguna Primary School, the driver tried to pick up speed. However, on the way, the gang started to attack the driver and those who sat with him in the cabin. The driver and his off/sider were repeatedly stabbed on different parts of their bodies. In the case of the victim of attempted murder he received a stab wounds to his neck.

18. The victim said in his statement that he fully identified four of the gang members. He referred to them as Anton Marko, Michael Waragu, Anton Minmin and Kasimir Peter. Robert says when he was sitting in the middle of the driver and his off/sider, he occasionally looked back to the back of the vehicle and saw that, the prisoner and Anton Marko were the ones who cut the side screen glasses of the vehicle and repeatedly stabbed the driver and his off/sider.

19. In the course of that attack, the driver and the off-sider were repeated stabbed and due to the loss of blood, the driver lost control and hit the side of the road causing the vehicle to turn over which resulted in the driver, his off-sider and the victim in this case thrown violently out of the vehicle. The facts show that, the prisoner and his co-accused then stabbed the driver and his two passengers. One of those three victims was the complainant in this case.

Allocutus

20. In reply to the caution given pursuant to s.593 of the Criminal Code, the prisoner said, he had nothing to say.

Address on mitigation.

21. Counsel for the defence made the following submissions on mitigations. He asked the Court to take into account the prisoner’s guilty plea. His plea is consistent with what he told the policemen during the record of interview on 11 November 2003. The prisoner is now 24 years of age and he is a single man. The prisoner hails from Malaguna No.1 village in Rabaul. His father is alive. He is the third last born of a family of 11 siblings.

22. Counsel submitted that the prisoner is currently serving two life imprisonment sentences for the wilful murder of the two victims of the same incident during which, the victim in the current case was stabbed. On the basis of the previous sentences, the defence counsel asked the Court to consider the totality principle on sentencing.

Address on aggravations

23. The prosecution counsel raised concern over the type of attitude of many young people in Papua New Guinea who have no respect for the law and take the law into their own hands or in instances where someone has totally gone outside the law in attacking innocent people like in this case. On the plea of youthfulness, Mr. Auka submitted that, the prisoner cannot rely on such plea as the offence he committed is very serious indeed. He submitted that life imprisonment prescribed by s.304 of the Criminal Code speaks for itself because the offence is serious.

Relevant Law

24. Section 304 of the Criminal Code sates:

"304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

25. The penalty prescribed by this Section speaks for itself. What the prisoner did to the victim in this case is very serious indeed. In law the Constitution protects the sanctity of life. It is often said that, the penalty to be imposed must fit the crime committed. It is hard for the court to describe the manner under which the prisoner executed the manner of attack on the victim.

26. I do agree with Mr. Auka that, the plea of youthfulness must not be accepted where an offence committed is serious. Both the Supreme Court and the National Court have had occasion to express the reasons why youthfulness should not be given as an excuse for committing serious crimes. I note that you are a young man but not a first time offender, which goes against your favour. It is necessary to consider this fact in the light of the recent development in the law.

27. A recent statement of the law in relation to the issue of youthful offenders was made by the Supreme Court in Joseph Nimagi, Gurua Kerui & David Bawai Laiam v. The State (1.4.04) SC741. There, the Supreme Court endorsed the position taken by both the Supreme and National Courts judgments in The State v. Thomas Waim [1995] PNGLR 187; Bokum Umba v. The State (2.4.76) SC92; The State v. Richard Amuna Koupa [1987] PNGLR 208; The State v. Kevin Anis & Martin Ningigan (7.4.03) N2360; The State v. Wesley Nobudi & Ors (19.12.02) N2310 and Paulus Manadatititip & Anor. v. The State [1978] PNGLR 128.

28. The principles stated in the above cases say that, the plea of youthfulness cannot continue to be a mitigating factor in serious cases. Instead, strong deterrent sentences are required where the offence is prevalent. Youthful offenders should not receive special treatment unless there are exceptional circumstances, which may warrant lesser terms of imprisonments.

29. The reason for that is quite obvious and that is because of the numerous warnings in the past cases, particularly in serious cases like that of wilful murder, murder, rape and robbery. Despite these warnings, many youths in the age group between 15 to 30 years are committing these types of very serious crimes.

30. In any event, in the instant case, the prisoner has previously been sentenced to two terms or life imprisonment for the offences of wilful murder which occurred at the same time with the present case. There are no other longer terms of imprisonment than a life sentence except perhaps for the death penalty. But the penalty of extinction or termination of life is not applicable in this case because the prescribed maximum penalty provided for by s.304 of the Criminal Code, as we have seen earlier is only life imprisonment. Having said this, I consider that a term of years should be the appropriate sentence.

31. I also take into account the principle of sentencing where an offender had committed more than one offence. This was the situation in this case. The totality principle requires that where there is more than one offence, the Court should weigh the consequences properly and impose sentences that will be fair in all the circumstances of the series of cases. The prisoner committed three offences one after the other. I am reminded of the sentencing principles on concurrent and consecutive sentences.

32. The principles require that, where there are a number of offences, sentences imposed should not just be straight forward additions which will result in unfairness being caused to an offender, but the total sentence must be just and fair in all the circumstances of the offences: Mase v The State [1991] PNGLR 88, (see also Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

33. On the sentencing trend in attempted murder cases, there is very few case law authorities reported. The first that comes into mind is the case of Joe Foe Leslie Leslie v The State (7.8.98) SC 560 decision of the Supreme Court where, the appellant was a prisoner on the run after escaping. Police received a tip-off of the whereabouts of the appellant and they mounted an operation to arrest him. Police surrounded the house where the appellant was hiding.

34. A police officer involved in the operation then proceeded up the steps of the house and called out if there was anyone in the house. There was no response so he pushed the door open and found the appellant lying on the floor with a sawn-off shotgun, which he used to shoot at that police officer, injuring him on the right shoulder. The injured police officer ran out and was taken to the hospital for medical treatment.

35. Meanwhile, other police officers who had surrounded the house fired shots into the house to force the appellant out but he did not come out. The police then fired a gas canister into the house and still the appellant did not come out. During this time, he fired another shot at the police officers outside but fortunately did not injure anyone. A fire started from the gas canister fired earlier on, which caused the appellant to come out of the house whereupon police shot him on the leg and apprehended him.
36. The medical report on the injured policeman confirmed that he recovered from the injury but with an estimated ten percent permanent loss of the efficient use of his right shoulder. It also confirmed that the victim suffered from constant arthritic pain in his right shoulder.

37. The trial judge considered this case to be amongst the worse type of attempted murder and imposed life imprisonment. In his reasons for judgment, the trial judge took into account what the Supreme Court has said regarding violence against police in the course of performing their duties and referred to the judgment in Peter Naibiri and Kutoi Soti Apia v. The State (25.10.78) SC137. He then concluded that it was a very serious offence as it involved the shooting of a police officer in the course of his duties.

38. The Supreme Court agreed with the National Court that it was a worse case of attempted murder and confirmed the sentence. In so doing, in its own words the Supreme Court found that:

"... [T]he appellant in this case was determined to fight even though the house was surrounded by armed policemen. He showed no respect for the law and the value of human life. We find that this case falls into the category of worst type of this class of offences. In the circumstances, we find that the trial judge correctly imposed life imprisonment."

39. Recently in The State v Frank Johnson, Murray William & Moses William (2004) N2586 a case before Kandakasi: J, the three co-accused were sentenced to 17 years imprisonment for the offence of attempted murder. The first accused was sentenced in his absence on the principle stated in a number of National Court cases in cases were prisoners have absented themselves from sentence or addresses on allocutus.

40. The above was a case where the Court found that the three co-accused acted in the company of each other. They were all armed, Frank Johnson had a grass king, Murray William had a slingshot and Moses William had a bush knife. One of them Frank Johnson, tried to cut the victim with the grass knife but Mr. Grayson came in between the two of them and managed to prevent it happening.

41. Then Murray William used the slingshot to shoot at the victim with a stone and the stone hit the victim on his right eye and he fell down. Moses William only encouraged his brother, Murray to kill the victim. The victim lost his right eye completely thereby seriously reducing his vision. He had the risk of total blindness if his remaining eye is injured or damaged. The three accused were sentenced to 17 years imprisonment.

42. In The State v Elijah Ute (2004) N2550, the same Judge imposed a sentence of 25 years on a policeman who attempted to kill a health worker in Saiho, Oro Province. In that case, the accused went to the house of the then acting officer in charge of the Saiho Health Centre, one Keisi Kiri during the night of 26 September 2003. The prisoner went to the victim’s house armed with a shotgun.

43. Upon arrival at the victim’s house, he told the victim that, he had gone there to kill him because he had disturbed him, loading and cocking his gun as he spoke to him. The victim spoke to the accused over the removal of two electrical line supporting poles by the accused’s boys. The victim tried to reason with the accused by pointing out that the poles belonged to the State and invited the accused to sit on a chair on the veranda of his house to talk over the problem.

44. The accused in that case refused to reason with the victim and take the invitation to sit down. He then pointed the loaded gun at him and said to him "Fucking say your last prayers and I’ll blow your head off now". The accused in that case repeated this three times and a fourth time with the question, "Have you finished your prayer."

45. He then took a step back from where he was, got his balance, took aim at the victim and shot at him. Miraculously, the bullet he fired from his gun missed the victim by a fraction of an inch. The impact of your shot however caused the victim fall to the floor covered in gunpowder from the shot he fired. The pallets from the bullet penetrated through the wall of his house and almost killed one of the victim’s family members. The accused then left the scene without saying a word thinking that he had killed the victim.

Your case

46. In your case, it is very serious. You and your co-accused had used bush knives to attack three innocent victims. The victim in this case was lucky to survive the attack. The two co-victims died instantly after you and Anton Marko attacked them. The principle for sentencing in wilful murder cases were enunciated in Goli Golu -v- The State [1979] PNGLR. 653, Avia Aihi (No.3) -v- The State [1982] PNGLR. 92 and Ure Hane -v- The State [1984] PNGLR 105. The principle is that, the maximum penalty should be reserved for the most serious instances of offences under consideration.

47. This means that, the maximum penalty should only be imposed in those cases where they are categorized to be the "worst type cases" encountered in practice. Your case was one of attempted wilful murder. The same principle would apply in your case. Such principle is that, the maximum penalty must be reserved for the worse type case.

48. It is often said that, the penalty to be imposed must fit the crime committed. It is hard for the court to describe the manner under which the accused committed the offence upon the three innocent victims in this case. In this country, there are incredible things happening. The reason you and your co-accused attacked the victim was because, you wanted to take the vehicle to conduct a robbery at Hamamas Hotel in Rabaul.

49. On the charge of malicious injuries, though you did not physically cut the vehicle when it was stationary at Rapolo village, the victim Robert Tito saw you cut open the side screen in order to continuously stab the driver and the off-sider. Your action was in some way gone towards the damage to the vehicle and by complicity you are caught under s.7 of the Criminal Code. This Sections states:

"7. Principal offenders.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

50. You were responsible for stabbing the victim Robert Tito. Your co-accused Anton Marko cut the vehicle several times at Rapolo village. You and Anton used the same bush knives to cut through the side screen of the vehicle to where the driver was sitting. According to cases such as The State v John Badi Woli and Pengas Rakam [1978] PNGLR 51 or that of Awap Omowo and Warsa Yirihim v The State [1976] PNGLR 188 and in Porewa Wani v The State [1979] PNGLR 593 and many more case after these ones, you were responsible for the action of each other.

51. In the same manner, you too cut the side to where the off-sider was sitting. You are equally liable for damages caused to the Agmark vehicle. For this reasons, you are now sentenced in the following manner. For count one (1) your appropriate penalty should be 25 years. For count two (2) the appropriate sentence is 1 year to be served concurrently upon each other.

52. These sentences shall also be served concurrently upon the life sentences he is currently serving. The time spent in custody from the date of conviction of the wilful murder charges is deducted from these sentences. He will serve the concurrent balances.

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.