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State v Wangoti [2009] PGNC 316; N3883 (26 September 2009)

N3883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 58 of 2009

THE STATE

V

EDDIE WANGOTI, EDDIE MONDO, MICHAEL PETER, STEVEN MARCUS

Kimbe: Kandakasi, J.
2009: 11th & 26th June

CRIMINAL LAW – Sentence - Murder – Group attack with dangerous traditional murder weapon – Attack on boat at sea in early hours planned killing -Unclear who landed the fatal injury – Conviction after trial –First time offenders – Prevalence of offence – Deterrent sentence called for – Sentence of 20 & 18 years imposed – Section 300 (1) of Criminal Code.

Cases Cited:

The State v Ben Simakot Simbu (No 1) (18/03/04) N2573
Manu Kovi v The State (2005) SC 789
The State v John Lambert and 5 Ors
Simon Kama v The State (2004) SC740
Simbe v The State [1994] PNGLR 38
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Raphael Kimba Aki (N0.2) (2001) 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
David Laim Bawai v The State (01/04/04) SC471
The State v. Edward Taude & Ors (No.2) (2001) N2299
Steven Mul Mangi v The State (2006) SC880
Joe Giamur v. State (2006) SC884

Counsel:

F. Popeu, for the State
D. Kari, for the Accused

26th June, 2009

1. KANDAKASI J: On Thursday 11th June 2009, you all pleaded guilty to one charge of murder. Following that, the Court convicted you and received your submissions in relation to sentence, together with that of the State. Through your respective lawyers, you asked for sentences between 20 and 25 years. On the other hand the State asked for a sentence between 25 years and life imprisonment.

Relevant Issue

2. Clearly the issue for me to determine then is what is an appropriate sentence for each of your? A determination of this issue is dependent on a number of factors, including the relevant facts and the circumstances in which you committed the offence.

Relevant Facts

3. The facts giving rise to the charge against you is simple and straight forward. On 3rd October 2008, there was a dance at Kavo Village. You men attended that dance. Another person, Albert James, now deceased, was also at the dance. You waited for an opportunity to attack the deceased in retaliation of something (unspecified) he had done against your family. Around 3:00 and 4:00am, the deceased, left the dance and went into a boat and was just about starting the outboard motor when you followed him to the boat. Upon reaching the boat on which the deceased was, Eddie Wangotie, you first got onto that boat and started to attack the deceased with a knife. You did after having identified amongst the other people that were there. The rest of you joined in and also attached the deceased. You were armed with a bush knife, a small knife and a cassowary bone which you used against the deceased.

4. As you were attacking him, the deceased managed to find a way and jumped out of the boat into the sea. Eddie Wangotie followed the deceased into the sea and continued the attack on the deceased. The rest of you followed suit. At that stage, the deceased called out for help. The nearby villagers having heard the deceased call for help came to rescue him, causing you to stop your fighting with the deceased and flee from the scene. The villagers from the nearby villager did go to the deceased help and they helped him to a boat. They then took the deceased to Milinata Health Centre. Unfortunately the deceased passed away and was pronounced dead on arrival by the Health Centre.

Submissions

5. In support of their respective submissions, your respective lawyers and the State's lawyer drew the Court's attention to a number of National Court judgments. They also drew the Court's attention to the decision of the Supreme Court in Manu Kovi v. The State (2005) SC 789 and submitted that, your case falls in the third and fourth categories.

Consideration

6. In the case of The State v. John Lambert and 5 Ors, I discussed the law and practice in relation to sentence which, applies here with some modification. Hence, I will repeat what I said there here.

7. I have said in a number of cases already that, I have difficulty following the decision in the Manu Kovi, case especially when it in effect, further categorizes homicide cases. As the Supreme Court, said in Simon Kama v. The State (2004) SC740, Parliament had already categorized the different categories of homicide cases. The decision in Manu Kovi had no regard to what the Supreme Court said on that point in the Simon Kama case, before proceeding with its categorization. Additionally, Manu Kovi has effectively in my humble view, amended the provisions of Sections 299, 300 and 302. This in my respectful view, is the case when the decision further categorizes murder and manslaughter cases, by suggesting and allowing categories where there are preplanning and there is an intention to kill or do grievous bodily harm which are essential elements in willful murder and murder cases respectively.

8. In murder cases, I note that the Supreme Court merely followed what was already decided by the Supreme Court in Simbe v. The State [1994] PNGLR 38, which endorse the decision of the National Court in The State v. Laura (No. 2).[1] The decision in that case 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.

9. 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 that the above guidelines were outdated and said the starting sentences for murder should be increased to 10 years having regard to the fact that sentences for manslaughter have gone passed the kind of sentences that had been suggest in the earlier decisions. This I said was necessary because manslaughter is lower than murder. I then proceeded to suggest significant changes to the range of years suggested in the Supreme Court decisions.

10. The Supreme Court effectively endorsed those views in its decision in the Simon Kama case. There the Supreme Court having regard to other decisions on point 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 the Court was 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."

11. 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 killing other people in total disregard for the sanctity of human life. Therefore, the Courts have increased sentences in murder cases.

12. 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.[2] There, the National Court imposed a sentence of 20 years. The prisoner 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.

13. Another 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).[3] He carried and used a firearm to commit the offence and was found guilty after a trial. I sentenced him to life imprisonment.

14. A further case the Supreme Court had regard to, was the decision of Kirriwom J, in The State v. Tom Keroi Gurua & Ors.[4] 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. The offenders were respectively aged 18 and 20 years old.

15. 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 in David Laim Bawai v. The State,[5] 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. The Supreme Court arrived at that view after carefully considering a number of earlier Supreme and National Court decision.

16. The decision in Manu Kovi, with respect tries to vary the Laura (No2.) guidelines in general terms. In so doing, Manu Kovi's last and final category talks about execution of a pre-planned brutal and vicious killing using dangerous weapons and lethal weapons. That is an essential element of willful murder and not murder. I am of the view that, categorizing murder cases in the way it did, the Supreme Court with respect in the Manu Kovi case down graded some instances of willful murder to murder which affects the further categorization of murder cases. In the circumstances, I am of the view that, the better guideline to go by is the decision in the Simon Kama. I am thus prepared to allow myself to be guided by the decision in that case as I have just done in the John Lambert & Ors case.

17. In the John Lambert & Ors case, I imposed a sentence of 15 years. That was a case in which the prisoners were found guilty of murdering another person after a trial. There was no preplanning to either kill or do grievous bodily harm. It was a case of one group of drunkards acting against another group. The evidence did not clearly indicate which of the prisoners landed the most fatal blow. Hence, all of the offenders received the same penalty.

Sentence in Your Case

18. The question then is, in which category does your case fall? This issue can be resolved by reference to the factors for and against you. I find that there are some factors operating in your favour and there are others against you.

Factors in Aggravation

19. Starting with the factors against you, I note and take into account the fact that, this was a case of one man being attacked by an armed gang of 5 men. Usually, the law permits people who act in a group or in the company of others to be dealt with severely than a lone actor. The Courts have repeatedly held that, anyone acting in association with another to commit an offence must be dealt with more severely than one acting alone. This is because those acting in association give strength and encouragement for the commission of an offence and can do far more damage than one acting alone.

20. Secondly, I note and take into account the fact that, you were all armed with a bush knife and a small knife which are dangerous weapons when used against another person. I also note that, a cassowary bone which I find features quite prominently in this Province in nearly all cases of homicide that I have come to deal with, is a dangerous weapon.

21. Thirdly, you preplanned, armed yourselves and attacked the deceased in execution of your plan. This brings your case into a willful murder case category save only for the State choosing to indict you with murder. I find this interesting particularly when you claim yourselves to be Seventh-Day Adventist Christians. Your church like any other Christian church, teaches against violence let alone planning and executing a murder. Despite that, you went ahead, planned, armed yourselves and attacked and eventually murdered the deceased.

22. Finally, you attacked the deceased when he was on a boat at the sea. I have taken the view that, attacking someone when at sea is a serious offence. I made that observation initially in the case of The State v. Edward Taude & Ors (No.2) (2001) N2299. This is because of the added dangers that entails. A man being attacked on land could if possible run away. The same does not apply to anyone under attack on a boat at sea, unless the person under attack is able to swim, able to escape or save himself or herself. In this case, the deceased took to the sea following your initial attack when he was on the boat. You pursued him into the sea and continued your attack. The medical evidence states, the deceased died of drowning. This confirms the kind of danger I am talking about by reason of which any attack at sea should qualify to be a factor in aggravation.

Factors in Mitigation

23. Against these aggravating features I note that there are a number of mitigating factors operating in your favour. The first factor is the fact that, this is your first ever offence. The law usually treats first time offenders with some leniency as opposed to a repeat offender.

24. Secondly, you all pleaded guilty to a serious charge. That saved the State much time and money it could be spent in trying to secure your conviction. I note this is a position you maintained from the moment you were arrested.

25. Thirdly, you have cooperated well with the police and other law enforcement authorities. I contrast your case with other cases in which, offenders deliberately put up a false defence deliberately denying charges against them when they know very well that, they committed the offence with which they have been charge. This kind of attitude forces the State to unnecessarily incur the expenses of mounting a trial. It also unnecessarily takes away the Courts precious and limited time and resources in hearing a case that should be dealt with as a short plea matter.

26. Fourthly, I note that, with the exception of Eddie Wangotie, the rest of you are relatively young. Nevertheless, I not that, this does not warrant any special consideration and reason of reducing sentence in your case because as the Supreme Court said in the case of David Laim Bawai, youth is no longer a strong factor in mitigation because many of the most violent crimes such as murder and rape are being committed by people as young as 14 to 15 years.

27. Fifthly, I note that you acted under some form of provocation in the non legal sense. Although you did not make this out clearly in your allocutus and submission, the evidence before the Court clearly disclose that, the reason for your planning to and executing your plan to attack the deceased was because the decease did something (unspecified) against one of your relatives.

28. Finally, I note and accept that, you have expressed genuine remorse for the offence you have committed. Your genuineness is confirmed by the fact that, customary compensation of K17,000 has been paid to the relatives of the deceased. I contrast your case from one in which an offender stands up in the accused dock and merely say sorry for the sake of it, without any tangible action to demonstrate the offenders remorse. It is easy for everyone to say sorry when accused or caught doing something wrong merely to avoid serious penalties or consequences following them. Only a few people do however express genuine remorse. I have always held the view that, an expression of remorse without anything tangible amounts to a mere expression that means nothing.

The Decision

29. Carefully weighing the factors for and against you, and having regard to the guidelines per the Simon Kama case, I find that your case falls somewhere between paragraph (b) and (c), of that case, which attracts sentences between 30 years and life imprisonment. I am however, not prepared to impose the maximum prescribed sentence of life imprisonment or anything closer to that because as I noted in the John Lambert & Ors case, the Supreme Court has sanctioned sentences of up to 16 years. I was there speaking specifically in terms of the decision of the Supreme Court in Steven Mul Mangi v. The State (2006) SC880 where the Supreme Court reduced a sentence of 35 years to 16 years, by merely following the guidelines in the Manu Kovi case.

30. In the Steven Mul Mangi case, the appellant killed another person using a knife and was convicted after a trial. The only difference between that case, and the John Lambert & Ors case was that, the appellant in that case acted alone whilst the prisons in the John Lambert & Ors acted in company of each other and that it was not clear who actually effected the fatal blow to bring about the death of the deceased.

31. At the same time, I noted that Supreme Court has considered a sentence of 14 years is appropriate for a single offender using only his legs and hands to effect kicks and punches resulting in a spleen rapture and eventual death of his victim. That was in the case of Joe Giamur v. State (2006) SC884, a case which had its origin here in Kimbe. There the appellant kick and punched his then wife causing her to rapture her spleen and die in the consequence. The National Court imposed a sentence of 7 years on his guilty plea which the Supreme Court increased on appeal to 14 years.

32. Having regard to these kinds of sentence, the factors in your mitigation has well as those against you, I consider a sentence of 20 years as a starting point appropriate. Accordingly, I start with that head sentence against each of you. Then appreciating that some of you are very young and at least one of you was the leader in this attack, I consider a sentence of 20 years is appropriate for Eddie Wangoti who led you in the attacking of the deceased. The rest of you are relatively younger and the evidence does not show you are taking any leadership role but were there supporting and encouraging Eddie in his attack of the deceased and were part of his plan and execution. I consider a sentence of 18 years appropriate for each of you.

33. I arrived at that decision, taking into account your individual person and family backgrounds as outlined to the Court by your lawyer. I have taken most of them into account in your mitigation and against you as in the case of being members of the SDA Church. I also note that your respective families will be affected by the sentence I have decided to impose against you. You must remember however, that these are the consequence of your own actions.

34. Out of your respective sentences of 20 years and 18 years, I order a deduction of the period you have spent in custody awaiting your trial and your sentence. I further order that, you serve the balance of your respective sentences in hard labour at the Lakeamata Correction Services. A warrant of commitment in those terms will issue forthwith.

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

^[1] [1988-89] PNGLR 98.
^[2] (2002) N2240.
^[3] (2002) N2186.
^[4] (2002) N2312.
^[5] (01/04/04) SC471.