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State v Vaki [2007] PGNC 163; N3464 (25 July 2007)

N3464

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 130 of 2000

THE STATE

V

PHILIP EKI VAKI

Waigani: Kandakasi, J.
2007: 16th, 20th July

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Murder – Killing of security guard in the cause of committing armed robbery – One gunshot at close range – Deceased killed instantly – Prisoner part of armed gang –Gang armed with two factory made high power guns – Prisoner a former soldier -Expression of remorse not in presence of and to deceased family and relatives – No customary compensation paid – Guilty plea – Timing of – First time offender – Earlier conviction for offence committed in the same transaction - Meaning of prior conviction – Conviction for offence committed at the same time as the offence under consideration not prior conviction - Good family background - Meaningful steps taken toward rehabilitation – Becoming member of a Christian church - Christian concepts of forgiveness – Prevalence of offence – Deterrent sentence warranted – Sentence of 30 years imposed – Concurrency of sentence – Same transaction except for different victims.

Cases cited:

Simon Kama v. The State (2004) SC740
The State v. Laura (No. 2) [1988-89] PNGLR 98
Simbe v. The State [1994] PNGLR 38
The State v. Raphael Kimba Aki (N0.2) (Unreported judgment) N2082
The State v. Joseph Ulakua (2002) N2240
The State v. Tony Pandau Hahuahori (No 2) (2002) N2186
The State v. Tom Keroi Gurua & Ors (2002) N2312
The State v. Kevin Anis and Martin Ningigan, (2003) N2360
The State v.Peter Plesman and Paul Moaina
Ure Hane v. The State [1984] PNGLR 105
The State v. Ian Napoleon Setep [1997] PNGLR 428
The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65
The State v. Godfrey Edwin Ahupa, (1998) N1789
The State v. Ben Simakot Simbu (No.2) (2004) N2546.
The State v. Danny Mako (2005) N2996
The State v. Robin Warren and Others (No 2) (2003) N2418

Counsel:

M. Kupmain, for the State
P. Aeava, for the Prisoner

25 July, 2007

1. KANDAKASI J: You pleaded guilty to a charge of murder contrary to s.300(1)(a) of the Criminal Code which was committed in the course of committing another serious offence, namely armed robbery on 4th May 1999. You pleaded for leniency and asked for a sentence between 12 and 16 years going by sentencing guides that prevailed before the decision of the Supreme Court in Simon Kama v. The State (2004) SC740 and that, you serve your sentence concurrently with your sentence of 18 years for the offence of armed robbery. On the other hand, the State argues for a sentence of 30 years, given the seriousness of the offence. In so submitting, the State urged the Court to be guided by the sentencing trend in this kind of cases as confirmed by the Supreme Court decision in the Simon Kama case.

The Issue

2. Clearly therefore, the issues for this Court to decide are these:

(1) What sentence is appropriate for you?

(2) In order to resolve the first issue whether this Court should be guided by the decision in the Simon Kama case? And

(3) Whatever sentence, the Court decides to impose against is this an appropriate case for your sentence to be served concurrently with your armed robbery sentence?

3. Before anything else, I consider it appropriate that, I should first decide whether I should be guided by the decision in the Simon Kama case or not. That is a question of what is or are the appropriate guideline or guidelines for me to go by? After having determined that issue, it would be then appropriate for me to decide what sentence is appropriate for you and finally, whether the sentence should be served concurrently with your armed robbery sentence.
   

Appropriate Guidelines

4. I will now turn to the law and sentencing in murder cases. The offence with which you have been charged, found guilty and convicted of is provided for by section 300(1)(a) Criminal Code. That provision is in the following terms:
   

"(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person ...

....

Penalty: Subject to Section 19, imprisonment for life."

5. The National and Supreme Courts have in the exercise of the discretion vested in them by s.19 of the Code, have imposed sentences other than life imprisonment and have come up with sentencing guidelines. The National Court in The State v. Laura (No. 2) [1988-89] PNGLR 98 first suggested the following as the appropriate guidelines to be followed for sentencing in murder cases:
   

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

6. In its decision in the case of Simbe v. The State [1994] PNGLR 38, the Supreme Court adopted the above guidelines. Since then both the Supreme and National Courts continued to apply these guidelines to arrive at decisions on sentences in murder cases. In my decision in the case of The State v. Raphael Kimba Aki (N0.2) (2001) N2082, I reviewed sentences in murder cases and said at pages 4-5:
   

"Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;

2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate."

7. In its decision in the Simon Kama case, the Supreme Court endorsed and adopted the views and suggestions I made in Raphael Kimba Aki (No.2) case. The Supreme Court also had regard to the other authorities on point and said at page 22 of its judgment:
   

"... 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."

8. The Supreme Court arrived at that decision after noting that the offence of murder has become a seriously prevalent offence with many people quickly and easily resolving to kill other people in total disregard for the sanctity of human life and the Courts have increased sentences in murder cases. Before arriving at that position the Court had considered a number of earlier sentences in murder cases. That consideration started with the decision in The State v. Joseph Ulakua (2002) N2240. In that case, the National Court imposed a sentence of 20 years. The prisoner in that case, killed his wife after she had run away from him following an alleged adulterous affair with some men in the prisoner’s own village. He pleaded guilty to the charge and had no prior conviction.
   
9. The next case the Supreme Court had regard to was a decision by Sevua J., who imposed on a guilty plea, a sentence of 30 years each against two prisoners who were not the ring leaders and did not carry and use any dangerous weapons. They acted in concert with others and killed a person with serious injuries to 5 other victims, including a loss of sight by one of them. They were passengers in a motor vehicle which failed to stop at a roadblock the prisoner and his co-offenders set up to rob motor vehicles and their passengers. I dealt with the ring leader in The State v. Tony Pandau Hahuahori (No 2) (2002) N2186. He also carried and used a firearm to commit the offence and found guilty after a trial.
   
10. The next case the Supreme Court had regard to was the decision of Kirriwom J, in The State v. Tom Keroi Gurua & Ors (2002) N2312. There His Honour, imposed a sentence of 50 years and 20 years against the prisoners. The 50 years was against the gunmen who shot the deceased. The deceased went in aid of his daughter whom the offenders tried to abduct and eventually rape. They were respectively aged 18 and 20 years old.
    
11. One of the prisoners, David Laim Bawai appealed against his sentence of 50 years, claiming it was excessive. After having heard its appeal, the Court dismissed the appeal on the basis that the sentence was too lenient. The Court was of the view that he should have received the maximum sentence of life imprisonment, given the seriousness of the offence and the prevalence of the offence warranting increases in the sentences.
    
12. After the above case, the Supreme Court also had regard to my decision in The State v. Kevin Anis and Martin Ningigan, (2003) N2360 where I imposed a sentence of 37 years each against the prisoners. There, the prisoners were part of a gang that carried out an armed hold up on the Sepik Highway with intend to rob the motorist. They set out to execute their planned robbery which went bad resulting in the killing of a passenger and the wounding of another. The conviction and sentence came after a trial. The prisoners were not the gunman doing the killing and wounding.
    
13. The Supreme Court noted that before arriving at the above decision, I reviewed the then sentencing trend and observed in that judgment that:
    

"This clearly shows a trend of increased sentences, especially in cases where a person is killed in the course of pursuing another unlawful purpose. Likewise, there is an increase in the kind of sentences that are being presently imposed against armed robbers. This is reflective of the fact that there is so much killing, almost every day in the course of other unlawful purposes such as armed robberies. This is disastrous for our country. The adverse effects of such violent crimes as murder, armed robbery and rape on the country as a whole, has been adequately expressed in numerous judgments of both this and the Supreme Courts,... It is not necessary to repeat them. Sufficient only to say that society is saying enough is enough and that such offenders should be dealt with severely."

14. The Supreme Court in effect agreed with those observations as well as my observations in my subsequent decision in the Joseph Ulakua case, where I said:
    

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other persons life without any lawful excuse or one that is not permitted by law. The onus is therefore ...on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes, of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of the Constitution and you find that that presumption is only in relation to guilt. Once guilt is established or admitted, the presumption no longer exists."

15. After reviewing the sentencing in the above manner, the Supreme Court in the matter before it found that the appeal was fortunate enough to receive a sentence of 25 years. Then I noted that the Appellant was the gunman that shot the deceased dead. Before that, he had planned to carry out a robbery. For that purpose, he needed a motor vehicle and so he waited for a motor vehicle to turn up. When the deceased turned up with his vehicle, the Appellant pointed the gun at the deceased and deceased slowed down to stop. Notwithstanding that, the Appellant proceeded to shoot him at close range without any warning, resulting in his death. The killing was totally unnecessary as he could have achieved his other unlawful purpose without killing the deceased. Killing was uncalled for and executed in cold blood. The Court further noted that the Appellant had also tried to kill the deceased passengers and robbed a female passenger.
    
16. The Supreme Court said, if the Public Prosecutor cross-appealed or asked for an increase in the sentence, it would have done that by imposing the maximum prescribed sentence of life imprisonment. The Court went on to observe that, given the ready commission and prevalence of the offence of murder coupled with serious aggravating circumstances in which some of them are committed, the time had come for the Court to seriously, reconsider the guidelines set by the Laura (No. 2 case as endorsed and approved by the Simbe case. The Court noted that those guidelines were set in the 1980s and in the early 1990s. Further, the Court noted that, the circumstances in which those guidelines were set are no longer the same nowadays. Furthermore and more importantly, the Court noted that, there is a lot of unnecessary and uncalled for killings today than it was before. Finally, the Court noted that, progressive increases in the sentences for this offence has failed to deter other would be offenders.
    
17. Then speaking of the attitudes of murders, the Supreme Court said:
    

To the offenders, the lives of their victims have become so cheap but when it comes to a few years or life imprisonment for them for the taking away the life of another, their lives becomes so precious evidenced by their ready appeals. Both this Court and the National Court, in our respectful view, have indirectly contributed to that view of the offenders by imposing far too lenient sentences as in The State v. Peter Plesman and Paul Moaina,... which was a case of double murder of two brothers in their residential area. That case, in our view, warranted the death penalty and falling short of that, life imprisonment. Similarly, we are of the view that the Public Prosecutor has contributed to this view of the offenders by his choosing to present indictments for lesser charges such as murder from willful murder and manslaughter from either willful murder or murder when there is clearly a serious case warranting a willful murder or murder charges. Further, in our view, the Public Prosecutor has further encouraged such views of the offenders by failing to appeal or cross-appeal against clearly lenient sentences as in The State v.Peter Plesman and Paul Moaina.

18. The Supreme Court went on to observe that this view of offenders have come about because of an apparent misapprehension that murder cases have different categories influenced by Bredmeyer J.’s classification of willful murder cases in Ure Hane v. The State [1984] PNGLR 105. That classification, the Supreme Court noted have the tendency to suggest that, there are different categories of life and that some killings are more serious whilst others are less serious. This, the Supreme Court said needed correction and it did so by stating that:
    

"... it is a serious offence for a person to kill another person in circumstances not permitted by law. It does not matter who the deceased person was and or the reasons of his murder, except as may be provided for by law. Therefore, a sentencing judge should start approaching sentence with a serious consideration of the prescribed maximum sentence first in every case of murder."

19. For its reasons for arriving at that view, the Supreme Court adopted what Sevua J., said in The State v. Ian Napoleon Setep [1997] PNGLR 428, in the context of willful murder, where His Honour said:
    

"Whilst it is true that different types of willful murder have been described as the worst type in Ure Hane, ...that it is difficult to distinguish between willful murders because they all involve intentional killing with death as the consequence. Whether a willful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult,.....to consider one willful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and willful murder) however in my view, it is hard to say one willful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."

20. The Court referred to adopted the similar views expressed by Woods J. in The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65 and Kirriwom J., in The State v. Godfrey Edwin Ahupa, (1998) N1789 as well as my comments in the case of The State v. Ben Simakot Simbu (No.2) (2004) N2546.
    
21. After considering all of the comments and observations in the judgments referred to as well as what the Court already said, it went on to say:
    

"... we are of the view that it is erroneous to classify murder cases except has is provided for by the Criminal Code as a starting point. The Criminal Code classifies different categories of murder in terms of willful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor. A murder is willful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements, it is manslaughter."

22. As would be apparent from the above discussion, the decision of the Supreme Court in the Simon Kama case, revised and recommended new sentencing guidelines for murder cases, especially the tariffs. This was done on the basis of sentencing trend established by the earlier decisions. In that regard, the Supreme Court did not come up with a new sentencing guideline as of the date of its decision but merely summed up and restated the trend that had developed and become established by then. In the circumstances, it would not be totally inappropriate to apply the guidelines as restated by the decision in the Simon Kama case.
    
23. Apart from what I have just said, I note that you committed the offence in May 1999. Most of offences committed around that time did not get dealt with by the National Court until 2000, 2001 and beyond that. A good example of that is the Tony Pandua Hahuahoru (No.2) case. In that case, the prisoner committed the offence on 9th March 1999, and his trial took place in February 2002. The trial in the Simon Kama case took place earlier than that in April 2001. It follows therefore that, your case falls in the same category as some of these cases in terms of the date of the commission of the offence and the kind of treatment your case should receive.
    
24. Given the foregoing, I consider it appropriate that I should allow myself to be guided by the sentencing trend in the cases referred to by the Supreme Court in the Simon Kama and the case itself to determine an appropriate sentence for you.
    

The Appropriate Sentence

25. Having settled upon what guidelines I should go by, I now need to determine an appropriate sentence for you. This requires a close examination and consideration of the relevant facts and applying the above guidelines to the relevant facts. I will therefore turn to a consideration of the relevant facts first.
    

(a) The Relevant Facts

26. The relevant facts start on 4th May 1999 between 9:30 and 10:00am, when about seven men armed with a number of guns namely, two M16, A 2 rifles and two pistols held up Securimax Security guards at the Nadzab Airport, Lae, Morobe Province. The security guards were guarding and were in the process of loading onto a forklift for the purposes of airlifting to Port Moresby by Air Niugini that morning, a consignment of substantial amounts of cash money belonging to two banks, the Westpac Bank and Bank South Pacific. As the security guards were in the process of loading the consignment of cash, you and your gang turned up, used the firearms you had, calling out "hold up" and fired shots from the guns in the direction of security guards guarding and loading the cash consignment. The gun shots resulted in the immediate killing of one of the security guards, namely Simon Witne and wounded another. Other security guards managed to avoid being caught by the gun fires from your gang.
    
27. On seeing what your gang did to Simon Witne and his other colleagues, the other security guards ran for cover. That made it possible for your gang to get hold of the cash consignment and get away in a vehicle your gang stole in another armed hold up. Your gang drove out of Nadzab, in the direction of Lae. Then when your gang got to Yalu, you abandoned the stolen vehicle and fled into the mountains on foot. Unfortunately for you but fortunately for the State, the identities of some of your gang members and yourself were known to police. That made it possible for the police to carry out their investigations. The investigations revealed that, you had fled to Port Moresby after having committed the offence. Police thus, pursued you to Port Moresby and successfully had you arrested in Port Moresby on 19th May 1999, which was 15 days after the commission of the offence.
    
28. Police charged you with a number of charges including murder. You contested every one of those charges. That contest started with the engagement of a private counsel and a successful application before the Committal Court at Waigani for your remand at Bomana. However, the National Court overruled that order, when the Court ordered a transfer of your case to Lae. When in Lae, the Police conducted a record of interview at the end of June 1999 with you at your request without a lawyer. You answered every question with a "I will remain silent". Then when your case went through the Committal process in Lae, you unsuccessfully applied on more than one occasion to have the charges against you dismissed and the Committal Court on 14th January 2000 had you committed to stand trial in the National Court. Although the Constitution permitted you to take the steps you took, they were against the weight of the overwhelming evidence against you.
    
29. Following your committal and whilst awaiting your trial, it seems you escaped from lawful custody, which warranted the issuance of bench warrants for your arrest. Eventually, it became clear to you that, you could not avoid the long arm of the law. So you surrendered to authorities late 2003 and the National Court in Lae had you convicted and sentenced you to 18 years in hard labour for armed robbery. Presently, you are serving that sentence. At the time of your surrendering to police, you also handed in your M16A2 rifle with magazines and rounds.
    

(b) Applying the Guidelines to the Relevant Facts

30. The facts of your case place your case closer to the Tony Pandua Hahuahoru (No.2) and the Kevin Anis and Martin Ningigan cases, as well as the Simon Kama case itself. In those cases as well as your case, you all committed the offence of murder in the course of committing another serious offence, namely armed robbery. In the Tony Pandua Hahuahoru (No.2) case, the prisoner was the ring leader; he fired the fatal gun shot that killed the deceased. His conviction and sentence followed a trial. Several other people were also injured in addition to the deceased. However, the value or amount of money stolen was not substantial. He was given the maximum prescribed sentence of life imprisonment. On the other hand, his co-accused who pleaded guilty got 30 years each. They were made as principles under s. 7 of the Code.
    
31. In the case of Kevin Anis and Martin Ningigan, the prisoners’ conviction was after a trial. They were both first time youthful offenders. They were not the person that had the gun and used them against the deceased and others to commit the offence. Hence, they were dealt with under s.7 of the Code.
    
32. In the Simon Kama case itself, the Appellant was the gun man. He pleaded guilty to a charge of murder. He was also a first time offender but by no means a youthful offender. The Appellant committed the offence in order to commit two armed robberies. The first was to rob the deceased of his vehicle and the second was to use the vehicle to go and conduct an armed hold up of a business house and get away in the stolen vehicle. The trial judge imposed a sentence of 25 years. The Supreme Court was of the view that, that sentence was too lenient. The Appellant should have been given the maximum penalty of life imprisonment.
    
33. In order to arrive at a sentence that is appropriate and suiting the particular circumstances of your case, I need to consider the factors operating against you and those in your mitigation. I start that process by first considering the factors in aggravation.
    
34. Firstly, I note that you were part of a gang that set out to conduct an armed hold up. It seems your gang had planned the robbery well. It was therefore not a case of chance or opportunity. It also seems clear to me that, it was part of your gang’s plan to kill anyone that stepped in the way of you carrying out your planned armed robbery, going by the way in which your gang executed the robbery and before that the murder. There is no evidence of the deceased being in your way and raising any threat against yours or the lives of the other members of your gang. Yet one of your gang members who carried a M16 gun and shot the deceased and others in what is clearly cold blood without any prior warning.
    
35. Inferring from your subsequent surrender of your M16 and the other evidence on file, it seems clear to me that, you were the man with the M16 and used it to kill the deceased. However, fortunately for you, the State has not indicted you as the person with the gun and the one that actually killed the deceased. The State charged you only as someone being there with the gang committing the offence and therefore a principle under s.7 of the Code. I will therefore proceed to consider your sentence on that basis.
    
36. Secondly, I note that, the shootings by your gang to execute your planned robbery, was not only aimed at the deceased. Your gang shot at one other security guard and wounded him whilst another escaped any death or injuries even though he was shot at.
    
37. Thirdly, I note that your gang held up another person and robbed him of his motor vehicle. The stolen motor vehicle was then used as your get away vehicle. You ran away from police and were at large until the Police, based on good detective work, had you arrested in Port Moresby.
    
38. Fourthly, you tried every opportunity possible to avoid being charged and convicted evidenced by your various failed applications before the Committal Court. Then whilst you were awaiting your trial, you jumped bail and were at large for something until you found it difficult to hide from and avoid the long arm of the law reaching you and you surrendered.
    
39. Fifthly, you committed an offence that is prevalent. Murder on its own is a prevalent offence and so is killing in the course of committing armed robbery. Both the National and Supreme Courts have warned that in the late 1990s that they would impose tougher penalties given the prevalence of the offence. Come the early 2000s, the Courts have in fact started to impose tougher penalties as evidenced and confirmed by the decision of the Supreme Court in the Simon Kama and many other cases.
    
40. Further, you are an ex soldier after having served with the PNGDF for sometime. You left the force following a dispute with those in leadership over your hardship and or high risk allowance for your tour of duty in the North Solomons Province during the Bougainville crisis. You have not rebutted or countered submissions by the State that you used your military training and skills to plan and execute the armed robbery and in the process, kill the deceased. The law usually deals more severely any law enforcement agent caught on the wrong side of the law. Cases that come to mind are my decision in the case of The State v. Danny Mako (2005) N2996 and The State v. Robin Warren and Others (No 2) (2003) N2418 as examples of case on point.
    
41. Finally, I note that you have not paid any compensation and taken any such steps to make it right with the deceased family members and relatives as well as the persons who sustained and or avoid injuries from your gang’s gun fires. Indeed any payment of compensation operates in mitigation of an offender. Payment of compensation, in my view, is a tangible proof of an offender taking responsibility for his criminal acts. Without any such act, a mere expression of remorse is meaningless. I note with interest that, you have made remorse a very big part of your own address to the Court before sentence as well as your lawyer’s submission.
    
42. You spoke from a pre-prepared four page statement of how sorry you were and how you have since converted and became a member of the SDA church and have taken on responsibilities in the church and in the prison. My repeatedly made reference to verse in the bible effectively point out amongst other that, we all have sinned and come short of the glory of God. You also spoke about God’s forgiving and changing powers. Unfortunately, you conveniently overlooked verse like Romans 6 verse 23, which says the wages of sin is death but the gift of God is eternal life through Jesus Christ. That is only possible if we as sinners confess our sins and are forgiven of our sins. Forgiveness is not possible even by God unless we first seek the forgiveness and are forgiven by the human beings against whom we do wrong. So as far as I can see what you may have done is to the exclusion of making it right first with the very persons who you have wrong and or injured and damaged.
    
43. You have not been able to demonstrate to my satisfaction that, how God’s forgiveness can excuse you from the demands of the laws enacted by the legislatures of each country whom God has himself empowered to govern and to rule. Such laws are necessary for the order and security and safety of each country’s citizens and residences. I am thus left to apply the law enacted by Parliament and as interpreted and applied by the Courts.
    
44. I have already outlined the factors against you. I now need to note those in your favour. The first is your expression of remorse, which I have already addressed. The other factor is your guilty plea. Your guilty plea no doubt saved the Court substantial time and money that could have been spent to produce and call witness against you. Your guilty plea also saved the Court much time it could have taken to hear and arrive at a decision on your guilt. Further, your guilty plea spared the witnesses the agony of coming into Court and re-living the bad memories of that terrible day when you and your gang killed the deceased in the way you did.
    
45. Another factor in your favour is the fact that, you have no prior conviction. In that regard, I note that I need not take into account your conviction for the armed robbery which was committed in the same transaction in which you committed the offence of murder. The effect of that is that, you have not been in trouble with the law before. That ties in well with your family and personal background as outlined in your 4 page statement, your lawyer’s submissions and the affidavits filed on your behalf. I duly note and accept that, you do come from a good family where each member of your family have positively contributed to the building of our country and are continued to do so as in the case of your brother, Geoffrey E. Vaki, MBE, QPM – Deputy Commissioner Operations with the Royal Papua New Guinea Constabulary. So I do accept that, it would appear that your involvement and commission of the offence under consideration was an unfortunate instance of stepping out of an otherwise good personal and family record.
    
46. Finally, I note that, although you were initially not cooperative with the authorities including you jumping off bail, you have changed all of that and became more cooperative. This appears to have occurred after you were convicted and sentenced on the armed robbery charge. I note and accept that, you have taken real steps to become a better responsible and law abiding citizen. I note at the same time however, that this could be the effect of prison life. I am aware that many prisoners pretend to change whilst in prison and when they get out, they get back to their same old self. At the same time many other prisoners change for the better and for ever. Only time can tell whether your changes are genuine or not.
    

Your Sentence

47. Weighing all the factors for and against you, I find that the factors against you far outweigh those in your mitigation because an innocent life has been lost. I need not repeat all that the Supreme Court said in the Simon Kama case about the offence of murder and its prevalence. The deceased had no chance to say good bye to his family, relatives and friend. He was merely attending to his lawful duty when you and your gang members carelessly and without any regard for the loss you were just about to bring upon him and his family, killed him for the purposes of executing another unlawful activity.
    
48. You still have your family around you. I am sure they will visit you from time to time and help with your rehabilitation efforts. You will have time to make your life right with God if you wish to avoid his punishment against you. On the other hand, you and your gang did not give the deceased any opportunity to make his life right with his God. You took his life prematurely.
    
49. The sentence, this Court is about to pronounce against you is for the part you played in the commission of the offence. In that regard, you will be receiving what you deserved as opposed to the deceased who did not deserve an instant and untimely death without a word of good bye to his loved ones at the hands of criminals who were interested only in money and total disregard for human life.
    
50. Having regard to the particular facts of your case, the circumstances surrounding the commission of the offence, the factors in aggravation as well as those in your favour, your personal and family backgrounds as outlined in your statement in address on sentence, the various affidavits in support and your lawyer’s submissions and kind of sentences imposed in similar cases in the past, I consider a sentence of 32 years appropriate and I impose that sentence.
    

Concurrency of Sentence

51. This Court now needs to determine the remaining question of whether, your sentence of 32 years should be made concurrent with your sentence of 18 years for armed robbery? The law is clear, that were more than one offence is committed in the same transaction, meaning at the same time, place and by the same offender against the same victims, the sentence should be made concurrent. In this case, although you committed the offence of murder against the deceased and the offence of armed robbery against the Bank South Pacific and Westpac Banks, they were close connected in that, the deceased was one of the security guards guarding and was in the process of loading the money. Accordingly, I am of the view that, your sentence of 32 years should be made to be served concurrently with your sentence for armed robbery. I make orders in those terms.
    
52. The final matter I turn to your pre-trial custody period. I note that the sentence for armed robbery does allow for a deduction of the pre-trial period you spent in custody. Then following your armed robbery sentence, you have been in custody serving your armed robbery sentence. Hence, there is no basis to deduct any part of your sentence on account of pre-trial custody. Accordingly, I make no orders for any deduction of your sentence.
    
53. The Court orders that you serve your concurrent sentence of 32 years at the Bomana Correction Services. A warrant of commitment shall issue in those terms.
    

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused