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State v Kiapkot [2011] PGNC 108; N4381 (14 July 2011)

N4381

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 195, 196,197, 198 & 199 OF 2008

THE STATE

V

GREGORY KIAPKOT,
MARTIN BIGIT,
TOBUNG PARAIDE,
PETER TAUL &
BOTCHIA AGENA

Kokopo: Sawong, J
2011: 5, 12, 14 April, 2nd May, 12th & 14th July

CRIMINAL LAW – Sentence – Multiple Counts of Wilful Murder – Multiple Wilful Murder – Worse Case of Wilful Murder – All first time Offenders – Whether Death Penalty or some other form of Sentence should be imposed – Death Penalty imposed – Criminal Code Section 299 (2), & s. 19 (1) (a a).

CRIMINAL LAW – Sentence – Multiple counts of Wilful Murder – Trial- First Offenders – mitigating Factors – Aggravating Factors – Extenuating Circumstances – Victim Impact Statements – Worst case of Wilful Murder- Circumstance of Crimes, Moral & Criminal Culpability so grave- Each prisoner be executed.

Case Cited:

Goli Golu v The State [1979] PNGLR 653

Avia Ahi v The State (1) [1981] PNGLR 81

Ure Hane v The State [1984] PNGLR 105

The State v John Wayake Kumani & Others [1992] PNGLR 524

Public Prosecutor v Don Hale [1998] SC 564

Application by John Mua Nilkare [1998] PNGLR 472

Joe Foe Lesley v The State (1998) SC 560

Tau Jim Anis v The State (2000) SC 642

Re application by Anderson Aigiru (2001) SC 671

Tony Imunu Api v The State (2001) SC 684

The State v Iroks Winston [2003] N 2347

Sara Kowa v The State (2004) SC 73

Manu Kovi v The State (2005) SC 789

Steven Loke Ume & Others v The State (2006) SC 836

Counsel:

N. Miviri, for the State
P. Kaluwin, for Gregory Kiapkot, Martin Bigit,
Tobung Paraide & Peter Taul
T. Potoura, for Botchia Agena

14 July, 2011

SENTENCE

1. SAWONG, J.: On the 4th of April this year, each of you were found

guilty and convicted on eight (8) charges each of wilfully murdering eight (8) different persons, namely, Ria Alphonse, Ismael Tibo, Anastasia Bolagas Maguri, Eremas Bokot Maguri, Bustaman August, Reagan Kiapmur, ToValaun Lauvo and Mathilda Maivon on the 26th of September 2007 at Makada point, in the Duke of York Islands of East New Britain Province.

Background

2. The facts are contained in the evidence by witnesses given at the trial. I do not propose to recite those facts or background in any great detail. Suffice it is to set out in a summary way the relevant facts for the purposes of considering the issue of what is the appropriate sentence to be imposed on each of you for the crimes each of you committed.
   
3. On the afternoon of the 25th of September, 2007 the five of you together with several others met at Kokopo and then proceeded by bus to the beach at Tavui No.1 where you drank some alcohol. In the course of drinking you discussed, conspired and planned to rob and kill the owners of the boat "Palex". There in the evening, some of you and your accomplices went out and came back with two boats and some firearms. All of you then stayed at the beach and drank and spent the night there. The next morning the group of you devided into two groups. In the first group was Gregory Kiapkot and several of you who left early in a 75 horse power boat for the Duke of York Islands. The other group followed some several hours later also for the Duke of York Islands. The reason for going to the Duke of York Islands was to ambush the owners and passengers of the boat "Palex". This was because Gregory Kiapkot was upset with the owners of the boat Palex in relation to some incident that had happened in the village which resulted in one of his relatives being severely injured. The two groups then met at the Makada point in the Duke of York Islands and waited for the boat Palex. Not long after, the boat Palex arrived at the scene whereupon you managed to block off its route. One of your boats blocked off the front part and the other boat with other accused then blocked off the rear part of the boat. When that happened, the operator of the boat attempted to escape but he was shot dead at point blank range by your accomplice Alex. Thereafter the crew of the Palex attempted to take over control of the boat but again one of your accomplices Anton also shot him dead with a gun. Thereafter you then took control of the boat Palex together with the other passengers in it and robbed them of their goods and murdered each of the victims. All eight of the passengers of the palex were murdered. It is clear from the evidence that a few days later, two bodies were recovered which was that of Anastasia Bolagas Maguri and Ismael Tibo. The other six people's bodies have not been recovered.
   
4. After hearing submissions on sentence and in the course of conducting my own research, it occurred to me that counsels had not addressed their minds to the requirement of s.21A of the Criminal Code Act. This provision requires the Court to receive and consider victim impact statements from the victims or their relatives of a crime. I therefore recalled the matter to come before me on 2nd May 2011. On that day, the case came up before me. Present on that day were counsels for the prisoners, the State and also the Community Based Corrections Officer. I then informed all the parties that in view of the gravity of the crimes, I considered that all relevant matters should be placed before the Court for its deliberations. Consequently, I gave directions to the Community Based Corrections Officers to interview and obtain victim impact statements from relatives, church elders, village leaders and local councilors on behalf of the prisoners and the deceased.
   
5. I directed the community based corrections officers to obtain those statements and file them with the Court by 30 June 2011. These officers have interviewed and compiled written statements from the relatives of the various victims, the prisoners and their relatives and several community and church leaders. I wish to publicly acknowledge the hard work done by Mr David Paul Simiriong and his officers in obtaining and collecting those statements. Their assistance has made my task a little easier with what is usually a difficult and grave task. I thank Mr Simiriong for the task he has completed and assisted me with. The statements comprise 36 pages. I will refer to the contents of those statements in the later part of my judgement.
   
6. When I administered the allocutus to each of you, each of you made

statements. Firstly Gregory Kiapkot. In your allocutus, you maintained your innocence and told the court that you did not kill those persons. You told the court that you have a young family, a wife and several children and that you are a community health worker. You told the court that in your professional life you had always had a great respect for the sanctity of human life and that you had always respected the law. You pleaded for leniency.

7. Martin Bigit. You too said that you respected the court and also protested your innocence. You asked the court to be transferred to Kavieng jail.
   
8. Tobung Mesulam Paraide. You also said that you respected the court and that you did not commit the offence.
   
9. Peter Taul. You said that you respected the court and you were innocent. You complained that you have been mistreated by the Police and assaulted and that is the reason why you made admissions.
   
10. Bothia Agena. You said sorry to the court and said that you are a family man with 5 children. You told the court that you were a committee member of the church and also protested your innocence. You said that you had no grudges against the people who died and that you did not know any of them.
    

The Issue

11. The issue to be decided is what is the appropriate sentence that should be imposed on each of the offenders for the crimes that each of them have been convicted of.
    

Defense Submissions

12. I deal with the submissions made on behalf of the prisoners first. Counsel for Bothia Agena, Mr. Potoura filed an 18 page extract of submissions. He submitted that there were two issues before the court, namely:
    
    1. Whether or not this case is one of the worse types of wilful murder cases and therefore should attract a maximum prescribed penalty of death.
       
    2. Whether or not the court should take into account the degree of participation by each prisoner in arriving at the appropriate sentence on each of the prisoners.
       
13. He submits that it is trite law that the maximum sentence should be imposed only for the worse category of that particular crime under consideration. He submitted that the maximum penalty should only be imposed in those cases where they are categorized to be the "worse type" of cases. He relied on Goli Golu v The State [1979] PNGLR 653, Avia Ahi (No.3) v The State (1982) PNGLR 92 and Ure Hane v The State [1984] PNGLR 105.
    
14. Mr. Potoura submitted that since the amendment that introduced the death penalty, there have been a number of death sentences imposed on offenders who have been convicted for wilful murder. He referred to The State v Charles Ombusu, (Unreported National Court Judgment dated 17/02/1995, The State v Steven Loke Ume, Charles Patrick Kauna and Greg Vava Kavoa, State v Arua Maraga Hariki (2003) N 2332, The State v Ben Simakot Simbu, (No.2) (2004) N 2546 and The State v Mark Poroli (2004) N 2655.
    
15. He submitted that even where the death sentence has been imposed by the National Court, however, on appeal the convictions have been quashed and or the sentences have been set aside and terms of imprisonment of either life or numbers of years have been imposed. It was his submission that the most appropriate case that should assist the court in arriving at an appropriate sentence in this case is the case of Manu Kovi v The State (2005) SC 789.
    
16. He further submitted that there are cases where, although the death penalty was considered and imposed, the Supreme Court has reduced the death sentence to one of life imprisonment. Here he relied on Steven Loke Ume & Ors v The State (2006) SC 836.
    
17. He further advanced an argument that there are cases of wilful murder which have attracted the terms of imprisonment such as in Sarakowa v The State (2004) SC 73, The State v John Wayake Kumani & Ors [1992] PNGLR 524, Joe Foe Lesley v The State [1998] SC 560, The State v Godfrey Adwin Aupa (unreported judgment) N 1789, The State v Andrew Keake (unreported judgment) N 2079, The State v Theo Raphael (No.2) (2002) N 2181.
    
18. The essence of Mr. Potoura's submission is that, considering the role that his client had played which was not significant, the court should impose a sentence reflecting the role he played. It was his submission that given the role that Bothia Agena had played in the commission of the crimes, the sentence of death should not be imposed on him but that rather a sentence of a number of years imprisonment or in the alternative, life imprisonment should be imposed upon him.
    
19. Mr. Kaluwin for the other prisoners adopted the submissions put

forward by Mr. Potoura. In addition he submitted that bearing in mind the mitigating factors in favour of the prisoners namely that each of them are first time offenders, that each of them have prior good characters, the roles each played in the commission of the crimes, it would be inappropriate to impose the death sentence. However, he submitted that a sentence in the terms of imprisonment either for life or determinate number of years would be appropriate.

Submissions for the State

20. Counsel for the State submitted that this was an exceptional crime in that eight people were wilfully murdered where the offenders had carefully planned and executed these killings. In the circumstances he submitted that exceptional sentence should be imposed on each of them. He urged the court to impose the death penalty.
    
21. Mr. Miviri also referred to the cases where death penalty has been imposed. He also submits that the Supreme Court has set out sentencing guidelines in Manu Kovi v The State (5) (2005) SC 789 and Steven Loke Ume, Charles Kauna and Greg Vava v The State (supra).
    
22. He submits that the Supreme Court has stated that where it is appropriate, the ultimate sentence of death may be imposed by the trial court.
    
23. He submitted that the cases that he has referred to has involved either single or two deaths at the most and not as is the case here where there were eight persons willfully murdered on the same day at the same time at the hands of the same defendants. He submitted that this is an extreme case on its own in the history of the criminal justice administration here in Papua New Guinea as there has not been a case where there is multiplicity of deaths at the same time and at the same place affected by the actions of the same defendants jointly and severally.
    
24. Mr. Miviri submits that each of the five prisoners took active parts in the commission of the crimes. He submits that there should be no difference in the way that the penalty should be imposed on each and everyone of the defendants. All are equally to be blamed and are responsible for the crimes that were committed. He further submitted that there should not be any discounts to any one of the prisoners. Essentially, he submits that there should be no disparity of sentence and that all of them should be sentenced on the same basis.
    
25. He submitted that the viciousness of the offence, the intent to eliminate and exterminate and rid altogether of any evidence of the existence of any of the deceased is clear from the bodies that were discovered. These are themselves gruesome and horrendous. He submitted that there are eight deaths altogether who were innocent persons who were travelling and who had caused no harm to any of the defendants in any way or form to be brutally murdered.
    
26. He submitted that there are no mitigation in all of the cases of the

defendants. There was nothing special in favour of the defendants such that they should be given special treatment in the sentence that should be passed on each of them.

27. Counsel for the State submits that this is an exceptional case given the facts and circumstances. He submits strongly that accordingly the case calls for an exceptional sentence. He submits that given the facts and circumstances of the case, it would be unjust to impose a sentence of either life imprisonment or a determinate number of years of imprisonment. HH He submits that the sentence must fit the crime. He urges the Court to impose the maximum sentence as the criminal and moral culpability of the offenders are of such gravity and so heinous that, each of the prisoners should be executed. In the end, the state through its' counsel strongly urge the Court to impose the death penalty.
    

Decision

28. I have fully considered the matters you have raised in your allocutuses and the respective submissions made by each of the counsels. I thank them for their assistance. I have also considered the various statements that were provided by the community based corrections officers.
    

The Sentence and Sentencing Trends

29. In considering what appropriate sentence the court should impose for a particular crime, the starting point must be a consideration of the penalty prescribed by the relevant statutory provision. That is the general principle.
    
30. The penalty for the crime of wilful murder is prescribed by Section 299 (2) of the Criminal Code. That provision states that a person convicted of the crime of wilful murder "shall be liable to be sentenced to death".
    
31. But the sentence of death is not mandatory. This is made clear by s.19 (1) (a a) of the Code and the Supreme Court decision in Steven Loke Ume and Others v The State (2006) SC 836. (Ume case) The effect of s.19 (1)(a a) of the Code and the Ume case is that the dealth penalty remains the maximum sentence for willful murder but is still discretionary.
    
32. As to whether a court should impose the maximum sentence or some other sentence depends on the facts and circumstances of a particular case and taking into account all relevant matters such as the personal antecedents of the offender, whether it was a plea or a trial and so forth. This should also include consideration of the aggravating factors, the mitigating factors and whether there are any extenuating circumstances.
    

33. There are many National Court and Supreme Court decisions dealing with wilful murder cases. The sentences range between determinate number of years imprisonment to the death sentence.

34. The Supreme Court has in two recent cases given sentencing guidelines for willful murder. These are Manu Kovi v The State (2005) SC 789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona and Greg Kavoa v The State (2006) SC 836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).
    

The Kovi guidelines

35. In Kovi a man stabbed his wife to death on a PMV in Port Moresby. He was convicted for willful murder and was sentence to life imprisonment. He appealed against the sentence. The Supreme Court dismissed the appeal and confirmed the sentence. The Supreme Court suggested that sentences for wilful murder convictions could be put in four (4) categories depending on the seriousness as set out below.
    

The Ume guidelines

36. In that case three men were convicted of the payback killing of an innocent harmless woman in her village in the Talasea area of West New Britain Province. She was tortured and made to die a slow and painful death.
    
37. The offenders were sentenced to death by the learned trial Judge but they appealed to the Supreme Court against both their conviction and sentences. The Supreme Court confirms their conviction for willful murder but upheld their appeal against sentence and reduced the sentence to one of life imprisonment.
    
38. The main reason for the reduction of the sentence from death to life

imprisonment was because the Supreme Court found that the trial judge had erred in not taking into account the appellant's respective personal backgrounds and mitigating factors, namely that the offenders were all first time youthful offenders and were unsophisticated who were acting in a pay back killing situation. Furthermore, the Supreme Court found that the trial judge erred in not finding what part each of the prisoner or appellants played in the killing of the deceased.

39. Moreover, the Supreme Court also found that the learned trial judge had erred in noting that another serious offence, namely rape was committed against the deceased which the trial judge did not find in his decision on verdict. However the Supreme Court did agree that that was a serious case of willful murder on an innocent person. The court agreed with the trial judge that the killing was most brutal, vicious and "must be seen as the most horrendous crime, there are no words to really express and discuss a horror of such an abduction and vicious murder of what was an innocent woman."
    
40. The Supreme Court then went on to express the view that this "kind of killing must not be tolerated in civil society and an appropriate punitive and deterrent sentence is warranted."
    
41. After discussing the effect and meaning of s.299 (2) and S.19 (1)(a a) of the Code, the Court in Ume's case then stated some general principles of sentencing in willful murder cases. It said at pp 20-22:
    

"The punishment for willful murder be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors.

The Court must then balance these factors and determine a

punishment which fits the particular crime.

The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-factor provocation, duress or coercion, the degree of and extent the offender's participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.

As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background, first offender, guilty plea, early confession to police, remorse, co-operation with police, poor health and restitution or compensation.

There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases rendered completely irrelevant: John Elipa Kalabus v The State [1988] PNGLR 193.

The death penalty being the maximum punishment for willful murder is reserved for the worst case of its kinds. The facts of each case will of course be different and the punishment for each case is to be determined on its own facts. In considering the appropriateness of the death penalty in a particular case, there are many relevant factors and considerations under the different heads mentioned above to be taken into account and it is not possible to list them all. Some relevant considerations are the position of the victim, the capacity of the offender, the reasons or motive for the crime, the modus operandi and the expression of genuine remorse after the killing.

Further, because the death penalty is the ultimate penalty under the Criminal Code, the Court should not restrict its consideration of relevant factors to the factual circumstances of the case and the offender's personal circumstances. It should also consider other relevant matters such as community concerns over prevalence of violent crimes and the need for strong deterrent and punitive sentence, public or private morality concerns, customary beliefs and values of both the deceased and offender's customary groups which influence the killing and the views of the victim's relatives."

42. The Court also stated that one of the relevant matters a trial court should consider is a victim impact statement, which is pursuant to s.21A of the Criminal Code (as amended by Criminal Code (Sexual Offences & Crimes Against Children Act 2002 (No.27 of 2002).
    
43. Before upholding the appeal, the Supreme Court also considered the position on death penalty legislation and sentencing approaches in a large number of countries including, the USA, Great Britain and Australia and arrived at a list of what the court considered as worse cases of willful murder similar to the one in Ure Hane's case.
    
44. The Supreme Court before arriving at that list said at p.34:
    

"We consider the death penalty may be considered appropriate in a willful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenseless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, "consciousless", "senseless", "pitiless" and "unnecessarily torturous": see Profitt v Florida 428 US 249 at 255. The crime is committed "by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning". Regina v Peter Ivoro, per Prentice J. at p.388-389. The offender's culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances."

45. The Supreme Court then suggested eight categories of willful murder cases where the death penalty may be considered appropriate. These are:
    

"1) The killing of a child, a young or old person, or a person under some disability needing protection.

2) The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

3) Killing of a leader in government or the community, for political reasons.

4) Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

5) Killing for hire.

6) Killing of two or more persons in the single act or series of acts.

7) Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

8) The prisoner has prior conviction(s) for murder offences."

46. I have considered carefully the principles and the guidelines suggested by the Supreme Court in the Kovi case and the Ume case. I would apply the guidelines from the Ume case to arrive at an appropriate sentence in this case for the following reasons.
    
47. As can be seen, the major difference between the Kovi case and the Ume case is that in the first case the learned trial Judge had imposed a life sentence. In Ume's case the learned trial Judge imposed the death penalty. The second point to note is that the Kovi case did not discuss in detail the issue of whether the death sentence should be imposed or not. But the Ume case does discuss in detail the principles relating to whether a sentence of death should be imposed or not on an offender or offenders convicted for the crime of wilful murder.
    
48. However, it is clear from both cases that the death sentence may be imposed in an appropriate wilful murder case. That is made abundantly clear by the two Supreme Court decisions in those cases.
    
49. The major difference between those two cases and this case is the number of persons that were wilfully murdered and the circumstances of the case before me. The case before me involves multiple killings. Another factor is that in this case, there was preplanning, gathering of arms and a deliberate and conscious intention to ambush, rob and murder the victims. You have each been convicted of eight (8) counts of wilful murder.
    
50. Of the eight (8) factors or categories set out in Ume case, two of the factors set out in that case would apply in this case. I am of the view that in this case, the killing of the persons was committed in the course of committing robbery. Further there were eight (8) persons murdered in the single act or series of acts.
    
51. The crime of willful murder is a serious and prevalent crime of violence. It is being committed on a regular basis in this country with the use of dangerous weapons such as guns and bushknives with viciousness and brutality. Despite many warnings and despite imposition of heavy sentence, and despite death sentences being imposed by the Courts, there seems to be a cavalier attitude to the commission of serious and brutal homicide killings. In other words the offence of willful murder is so prevalent in this country, that it demonstrates a serious lack of respect for the sanctity of human life. In my view, like all prevalent crimes of violence with the use of dangerous weapons such as guns, this particular crime requires an immediate punitive and deterent sentence.
    
52. The Supreme Court has said that in an appropriate willful murder case, the death penalty may be imposed. (see Ume & Others v The State (supra).
    
53. One of the matters, I have taken into consideration in arriving at the sentence I am about to pronounce upon each of you are the various victim impact statements, and the statements from each of the offenders and their relatives and the statements from the various community and church leaders. I do not propose to state here verbatim what each person has said in his/her statement, but I propose to summarize each of them.
    
54. I now turn to the victims statements. These came from some of the relatives of the deceased, namely Rodi Dumora Maguri, on behalf of the deceased Eremas Bokot Maguri, She is the elder sister of the deceased. She says that the deceased was well respected member of her family and the impact his death has caused to the family. In terms of persistent sentence, she suggests that the Court should impose the death sentence on each of the offender for what they did.
    
55. Nick Tabu is the father of the deceased Anastasia Bolagas Maguri. He too says that the death of his daughter and her husband has shocked them. Their deaths have left a vacuum in this family and have caused additional and unnecessary hardship, as they have left behind two very young children. He says that given the circumstance of her death, the prisoners should be given severe punitive and deterent sentences.
    
56. Anna Ria, widow of late Alphones Ria expresses similar sentiments. She says that as a result of the death of her husband, she has been left to fend for two very young children on her own. She is finding it difficult to look after his two children and her own life without the support of her late husband. She says that the prisoners should receive the same sentence as her husband. In other words, she asks the Court to sentence each of you to death.
    
57. Esther Maguri, expressed similar views and sentiments as her elder sister. She tells of the emotional and physical hardships, concerns and difficulties her family are suffering because of the death of her brother and his wife. She too says that the prisoners should be sentenced to the ultimate maximum sentence.
    
58. Maria Lowson, mother in-law of the deceased Reagan Kiapman also expresses similar views as the other relatives of the other deceased. She says that since her son-in-law's untimely death, she and her husband have to look after their daughter and their grand daughters. She has been traumatized with what happened to her son-in-law. What has been difficult to cope with is that the family was not able to view the deceased body or farewell him and bury him properly. She said the prisoners should be sentenced to death just like her son-in-law.
    
59. I now turn to the views expressed by community and church leaders. There are several statements, I do not propose to set out what each of them said, suffice it is to summarise these generally. However, I have read and considered each of those statements. All of these leaders tell of the prisoner's prior good characters, and what each of them did in their respective communities. They therefore suggest that it is really a matter for the Court's discretion as to what should be the appropriate sentence in the light of the facts and circumstances of the case.
    
60. Each of the prisoners were also interviewed and each of them gave their statements. I have read and considered each of their statements. In general what each of them has said is a repeat of what each of them stated in their respective allocutuses. For what is worth, I have considered these. I have also read and considered the respective statements from the relatives of each of the prisoners.
    
61. Before, I pronounce the sentence on each of you, I want to say a few remarks about each of you. It would be remiss of me not to refer to your personal backgrounds again here. Accordingly, I have taken into the following information in arriving at the sentence that I am about to pronounce upon each of you.
    
62. You, Gregory Kiapkot, is a trained health worker. You are aged 39 years old. You are a public servant and have been employed as such for many years. In the performance of your duty, I am sure you have cared for and respect for the sanctity of human life. You are in the prime of your life, turning towards middle age. You have a wife and several young children. Naturally, their welfare, education and future will be affected by the sentence that will be shortly pronounced upon you. The sentence I am about to impose upon you will not only affect your immediate family but also other members of the public who no doubt will miss your services as a health worker.
    
63. You are a first offender. That is, you have in the past been of good character until you committed these crimes. That is a mitigating factor which I have taken into account in your favour. There are no other mitigating factors in your favour.
    
64. As for extenuating factors, I accept that there was de facto provocation in existence which was an ongoing one, which arose from the severe beating of your close relative by the relatives of the Maguris. I have given some weight to this factor. However, in my view there are no other extenuating circumstances which I should take into account.
    
65. You were interviewed by the Community based Correction Officers and he obtained further statements from you and your wife. I have read and considered both of your statements. In your statement, you have expressed concerns about the welfare of your family and so on. You have expressed no remorse whatsoever. Your wife too has protested about your innocence and has expressed similar concerns about the welfare of your family it you are sent to jail.
    
66. On the other hand, you played a leading role in the commission of these crimes. You were the initiator, organizer, planner and executioner. That is clear from the evidence of the role you played in planning and organizing the commission of the crimes from the beginning to the end. You gathered the others, bought the alcohol, went out brought the boats and the guns. During the night of the 25 September 2007, you gathered your accomplices and had them swear to carry out this killing. The next morning you left with the first party of men in a boat to the Duke of York Islands. There you took active part in ambushing the passengers. You were seen cutting someone on the boat Palex. You encouraged and actively took part in the ambush. You were the ring leader of the group.
    
67. Martin Bigit. You are a single man aged 36 years. You are Gregory Kiapkot's nephew. You come from Lokon Village, Namatanai, in the New Ireland Province.
    
68. You are a first offender. This means that you have prior good character. That factor is in your favour. Apart from that, there are no other mitigating factors in your favour that I should have taken into consideration.
    
69. The extenuating circumstances that I have referred to in Gregory Kiapkot's case, applies equally to you. I have taken that into account and given some weight to it.
    
70. Your antecedent report shows that you are of the Catholic faith and had been to the primary school. You had some employment as a driver with RH Logging in Daru, Western Province from 2000 to 2001.
    
71. On the other hand you too took an active part, for you were involved with the others from the beginning to the end. You were an active participant in the planning and execution of these crimes.
    
72. In your statement you still protested your innocence. You repeated what you said in your allocotus. You too have not expressed any remorse for what you did.
    
73. Tobung Mesulam Paraide. You are also a married man and aged about 36 years old. You have 1 child. You have been educated up to primary school at Pilapila Primary School. You come from Pilapila village, Rabaul in the East New Britain Province. There is no history of any employment and I take it to mean that you have been living in the village as a subsistence farmer.
    
74. You are also a first offender. This means that you have prior good character. That is a factor in your favour. There are no other mitigating factors in your favour that, I should take into account.
    
75. Again, the extenuating factors that I have referred to earlier applies equally to you. Apart from the existence of a defactor provocation, there are no other extenuating circumstances that I ought to have taken into consideration. You are a member of the United Church.
    
76. You too took an active role in the commission of the crimes. You were with Gregory Kiapkot and others on evening of 25th September when all of you planned gathered the tools and guns to commit the crimes the following day. You were not an innocent bystander.
    
77. In your statement you also repeat what you said in your allocotus. You express concern about your family's welfare and you too continue to protest about your conviction. You also have not expressed any remorse for your conduct. Your wife has expressed similar sentiments about her concern for the welfare and well being of your family.
    
78. Peter Taul. You are 37 years old with 2 children. You also come from Pilapila village, Rabaul, East New Britain Province and had been living at the village as a subsistence farmer. You completed high school and attended the Moramora Vocational School in Kimbe, West New Britain Province. You are of the Catholic faith.
    
79. You are also a first offender. This means that in the past, you have been a good law abiding citizen. In other words, you have prior good character. I have given some weight to it because it is a factor in your favour. There are no other mitigating factors that I should have taken into your account.
    
80. The extenuating circumstances that I have referred to earlier applies to you equally, as you were part of the group.
    
81. You also played an active role in the commission of the willful murders. You were involved in the planning and execution of the crimes. You did not play any lesser role nor can it be said that you were an innocent bystander.
    
82. In your statement you repeated what you said in your allocatus. In your statement you also maintained your innocence. You have not expressed any remorseness at all for your criminal conduct. I have also considered the remarks made by your sisters. They tell of your previous good character, your assistant as a community leader and share your sentiments for the welfare of your family. They too say that you are innocent.
    
83. Bothia Agena. You come from Urkuk village in the Duke of York Islands. You are a member of the United Church and you completed Grade 6. You are a married man and aged about 40 years. You have 4 children.
    
84. You are a first offender. This means that in the past, you have been a good law abiding citizen. In other words, you have prior good character. I have given some weight to it because it is a factor in your favour. There are no other mitigating factors that I should have taken into your account.
    
85. The extenuating circumstances that I have referred to earlier applies to you equally, as you were part of the group.
    
86. I note that you were not physically with the others on the night of the 25th September 2007. However, the fact remains that the next day, you were with the others at Makada point and accompanied them to commit the crimes. You were also an active participant in the actual commission of the crimes.
    
87. In your statement, you also repeated what you said in your allocatus. There is nothing new in your statement. You too continue to maintain your innocence. You too have not expressed any remorse at all for your conduct. In addition, I have considered the statements from your wife and mother. Generally speaking both of them express concerns about their own and their families welfare. Your wife says that you are not a violent person. However two community leaders from where you come from tell of your violent behavior when you are under the influence of alcohol. They say that the community is fearful of you because of your violent behaviours and that since your conviction the community is safe and no longer fearful of you.
    
88. I have also carefully considered each of your personal antecedents, your backgrounds, your families and the matters you each raised in your respective allocutuses, and which I have taken into consideration at the beginning of this judgment. I have also considered carefully and noted carefully all those matters put to me by your respective Counsels.
    
89. It is my opinion that, the mitigating factors and the extenuating

circumstances that I have referred to earlier, are rendered meaningless by the sheer gravity, ferocity and brutality of these killings. You have each been convicted of eight (8) counts of wilful murder. This, amongst other factors, makes the whole of this case to be regarded as a worst case.

90. None of you were innocent bystanders. Each of you actively took part in the commission of these crimes. I have considered carefully the roles each of you played. The evidence shows that each of you actively participated from the beginning to the end. None of you were innocent bystanders. None of you played any lesser role. Given the active roles each of you played, in my view the mitigating factors and the extenuating circumstances are rendered meaningless and are of no weight at all. Further the gravity, the brutality of what happened here renders those factors into insignificance. If each of you had not actively participated, the crimes would not have been committed. As the Supreme Court said in Gimble v The State [1988-89] 271, at p.273:
    

"the general rule is that all active participants in the crime should be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar or was a watchman outside, or was the driver of the get away vehicle. All are equally guilty because without each playing his full part, the crime could not be perpetrated."

91. This is the worst case of willful murder. In fact, I think this is the first time in this country where the Court is dealing with a case where multiple number of persons have been wilfully murdered in a single act or series of acts. This was a senseless killing of innocent persons.
    
92. In this case, what is most significant and what makes it, a worst case of willful murder is not only that there were intentional multiple killings but importantly, the circumstances, of pre planning, organizing and the eventual killing of the victims. This is in itself gruesome. The killings were done on the sea, where it was impossible to escape. This demonstrates the viciousness, brutality and the gravity of this case.
    
93. You took the lives of innocent and harmless unarmed men and women. You took away their lives prematurely. You had no legal or moral right to take the lives of these persons. Because of your actions, these people are now gone for ever. Their loved ones will miss them forever. Some of them have not been decently buried, for their bodies have now become food for fish and other animals living in the sea.
    
94. Your case has troubled me since I convicted each of you. The sentences that I am about to pronounce on each of you has been a difficult one. What has been difficulties is whether each of you should be sentenced to death or some other sentence such as life imprisonment or determinate number of years imprisonment.
    
95. Whilst I have seriously considered other sentencing options, such as life imprisonment or determinate terms of imprisonment, however, given the facts and circumstances of this case and the reasons I have given, I have come to the firm conclusion that the ultimate sentence provided by law must be imposed upon each of you. I consider that the maximum sentence should be imposed upon each of you because this case involved premeditated, vicious and brutal killing in cold blood of not only one, but eight (8) innocent, defenceless persons with complete and blatant disregard for the sanctity of human lives for which there is really no lawful motive for taking away their lives.
    
96. Whilst each of you have been convicted of eight (8) counts of wilful murder each, I do not propose to impose a sentence on each count. Rather, as the crimes arose out of a single act or series of acts that one sentence should be imposed. I propose to impose a concurrent sentence.
    
97. I have had great difficulty in expressing the horror of what you did. This is an exceptional case calling for an exceptional sentence. I can do no better than to adopt and paraphrase what the Supreme Court said in the Ume case. In my considered opinion, each of your culpability is so grave that each of you deserve execution. In my view, whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by all of you is so grave and reprehensible that each of you is underserving of a chance to live your own lives, and instead, it is only just and fair that each of you should pay for the crimes with your own lives. Your banishment from the community is the only just and appropriate punishment for your crimes in all the circumstances.
    
98. Pursuant to the powers given to the Court by s.299 and s.597 of the Criminal Code Act, Chapter No. 262, the Court pronounces and sentences each of you as follows:
    
1. Gregory Kiapkot, you are to be returned to custody, and that at a time and place appointed by the Head of State, acting on advice, you Gregory Kiapkot, be hanged by the neck until you are dead.
   
2. Martin Bigit, you are to be returned to custody, and that at a time and place appointed by the Head of State, acting on advice, you Martin Bigit be hanged by the neck until you are dead.
   
3. Tobung Mesulam Paraide, you are to be returned to custody, and that at a time and place appointed by the Head of State, acting on advice, you Tobung Mesulam Paraide be hanged by the neck until you are dead.
   
4. Peter Taul, you are to be returned to custody, and that at a time and place appointed by the Head of State, acting on advice, you Peter Taul be hanged by the neck until you are dead.
   
5. Bothia Agena, you are to be returned to custody, and that at a time and place appointed by the Head of State, acting on advice, you Bothia Agena be hanged by the neck until you are dead.
   

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the 1st, 2nd, 3rd, & 4th Accused
Paraka Lawyers: Lawyer for the 5th Accused