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State v Lonu [2011] PGNC 351; N5143 (7 September 2011)

N5143

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 697 – 700 OF 2008

THE STATE

V

KAIT LONU & 8 ORS

Madang: Kawi J
2011: 7th September

CRIMINAL LAW - Sentencing- Prisoners all indicted with one count of murder under section 300 of criminal code- Mitigating and aggravating factors considered- Compensation paid in both cash and kind- role of compensation payment discussed. Compensation is paid in order to appease anger, bitterness and hatred amongst the disputing communities. It is paid to maintain peace and harmony and to build a bridge amongst a community of disputants. Payment of compensation cannot be taken as a strong mitigating factor and therefore exculpatory in nature- Principles of sentencing considered- Category 2 of the Manu Kovi appropriate sentencing guidelines – Prisoners given a 16 year jail term except the principal offender who is given 17 years.

Brief Facts

Nine (9) young men were all indicted and found guilty and convicted after trial of the unprovoked and senseless murder of an innocent bystander during a morning raid on a neighboring village. The raid was conducted by the nine prisoners all young men who were armed with dangerous weapons and who had set out to capture an "Ironman" from the neighboring village. Evidence produced showed that a compensation amount of K13,000.00 was paid in both cash and kind. In sentencing the nine (9) young prisoners:

HELD:

(1) The actions of the nine prisoners clearly falls into the 2nd category of the Manu Kovi sentencing guidelines, which attracts sentences in the range of 16 to 20 years in this category of homicide offences. Consequently eight prisoners are hereby given custodial sentences of 16 years each while the principal offender is given a term of 17 years considering the prominent role he played in this unlawful killing.

(2) The purpose of paying compensation is to maintain peace and harmony between the disputing communities. Compensation paid will not resurrect the life of a person prematurely and senselessly terminated. Compensation paid is to appease anger, resentment, and hatred amongst the disputing communities.

(3) Consequently payment of compensation cannot be taken as a very strong mitigating factor. Neither can it be considered as an exculpatory factor.

Cases cited in this Judgement.

Counsel:

Mr N, Goodenough, for the State
Mr M. Mwawesi, for the Accuseds

7th September, 2011

1. KAWI J: Kait Lonu, Mulide Judah, Douglas Gemo, Lance Judah, Peter Biul, Johndik Modo, Keddy Lonu, Amos Judah and Alfred Besek were all found guilty of the murder of one Kau Selep.

2. The facts of the case are clearly stated in my judgment on verdict. Briefly stated the accused persons, all young boys from Feiog Village in the North Ambenob area of Madang Province had armed themselves with missiles and weapons, such as sticks, bush knives and grass knives and early in the morning of the 3rd of January 2008, walked down to neighboring Korog Village.

3. They went to Korog Village to apprehend a young man of Korog Village, one Wilfred Masol, whom they all had described as "the iron man" of Korog Village. When they came to Korog Village, they were all shouting and making noises. They surrounded Wilfred Masol's house and plucked off all possible escape routes. Their shouting prompted the deceased, Kau Selep, who came into the scene to see just what the noise was all about, when he was attacked with a knife. He lost a lot of blood and died as a result.

This is now my judgment on sentence.

4. From the outset, let me remind myself that sentencing is not an exact mathematical science guided and characterized by fixed scientific formulas. Rather sentencing is a discretionary process guided by several well known legal principles.

5. The first legal principle, I take into account and apply here is that the maximum sentencing penalty prescribed by legislation itself will usually be reserved for cases categorized as belonging to the worst case category or the offender being categorized as a worst or a serial offender. There is nothing in the circumstances of this case to warrant this case being classified as belonging to the worst category or the accused persons being classified as worst or serial offenders.

6. I find that this killing occurred in ordinary circumstances not warranting to be classified as a worst case.

7. The second principle I consider is that I must consider all factors operating in favour of the accused persons and those operating against the accused person.

8. Factors for the accuseds are often referred to as mitigating factors and those operating against are often referred to as aggravating factors.

MITIGATING FACTORS

9. The mitigating factors operating for the accused I find are these:

(a) The accused persons are all young boys.

(b) All of them are married and have young children. Two of the accused persons have wives who are currently pregnant.

(c) The accuseds are not overly sophisticated young boys. All of them have attained basic education at Grade 6 level. A number of them have advanced beyond grade 6 education level.

(d) All the prisoners are young first offenders who have never been in conflict with the law before except the current charges. This fact was confirmed when the State did not allege any prior convictions during the presentation of the Antecedent Reports of the Prisoners.

AGGRAVATING FACTORS

10. The learned State Prosecutor has outlined aggravating factors, which I will adopt with respect:

(1) All accused persons armed themselves with dangerous weapons like sticks, knives and grass knives that morning, when they set off for Korog Village that morning.

(2) By arming themselves with missiles and weapons that morning the accused persons knew or ought to have known that they would possibly hurt or injure someone in the course of day.

(3) They created a lot of nuisance and trespass at Korog Village.

(4) The prisoners went to Korog Village, all armed as a band of brothers, albeit rascals.

(5) The whole intention of the prisoners so arming themselves is to catch a fugitive in that village whom they had termed as "the Iron man of Korog Village". This Court finds that they would have done some harm to this fugitive. The Court further finds that the whole intention of the prisoners is to cause grievous bodily harm at Korog Village.

(6) The prisoners were basically taking the law into their own hands.

(7) The deceased was an innocent person, whose life was mercilessly and senselessly terminated by a band of rascals, who had little or a complete disregard for the sanctity and sacredness of precious human life.

(8) Finally it was submitted that the accuseds were found guilty only after a trial. Conducting a trial incurred a lot of time, money and resources for the State.

11. When I balance the mitigating and the aggravating factors together, the aggravating factors tip the scale.

PRE-SENTENCE

12. A pre-sentence report was done by the Community Based Corrections Officer on behalf of the prisoners. The report sought the views of all the prisoners as well as the family and relatives of the deceased.

13. In that regard, I find that the report did capture the views of all relevant stakeholders. I will therefore accept the views expressed in the report. Even Community leaders of the affected villages have made statements pleading for leniency for the young prisoners.

SENTENCTING GUIDELINES

14. Defence Counsel, Mr Mwawesi submitted that this case falls into the third category of the Supreme Court decision in the case of Manu Kovi-v- The State (2005) SC 789 which attracts a sentence in the range of 20-30 years.

15. I have had a look at the various categories in the Manu Kovi decision. I find that the circumstances of this case fall into the second category of the Manu Kovi case. This would attract custodial sentences in the range of 16 – 20 years. The following factors should be present in order to warrant a case falling into the second category of the Manu Kovi decision.

➢ Pre-planned victim attack.

➢ Strong desire to do grievous bodily harm.

➢ Some pre-planning.

➢ Some element of viciousness.

16. The circumstances surrounding the attack as the deceased Kau Selep, show the presence of all these elements.

COMPENSATION

17. Evidence shows that a total compensation amount in the sum of K13,000.00 was paid both in cash and kind to the family, and relatives of the deceased. In my view, payment of compensation should not be strictly treated as a very strong mitigating factors. Payment of compensation is done to bring peace and harmony to the family and relatives of the deceased. Compensation is paid to appease anger, bitterness and resentment to each other. Compensation is paid to maintained peace, normalcy and harmony and will be a bridge between communities of disputing parties. Payment of compensation will not resurrect the person who has already lost his life.

For this reason, I will therefore not treat the payment of compensation as a fully exculpatory factor.

18. In submissions learned counsel for the prisoners Mr Mwawesi submitted that an appropriate sentence for the prisoners should be in the sentencing range of 10 – 15 years. He submitted that this would truly reflect the circumstances of this case.

19. The learned State Prosecutor on the other hand, submitted that a custodial sentence range from 20 – 30 years is appropriate in the circumstances of this case and should therefore be imposed.

20. Having considered these submissions, I am of the view that a strong custodial sentence is warranted here. This is so that effect can be given to the sentencing objectives of deterrence to offenders and would be offenders. Because the offenders are all young boys, it is hoped that the custodial sentence would also assist in the process of rehabilitation of this young band of prisoners.

21. As indicated earlier, the circumstances of this case fall squarely into the 2nd category of the Manu Kovi sentencing guidelines. While I acknowledge the strong submissions of the learned counsel for defence, In his submission, that the prisoners should be given custodial sentencing ranging from 10 – 15 years, I find that this is the sentencing range served for manslaughter cases. I will therefore not impose a custodial sentence of 10 – 15 years. Instead I will go by the range of sentencing options prescribed in category 2 of the Manu Kovi decision.

22. In considering the sentence that I am about to impose, I also take into account the mitigating factors, as well as the general good and co-operative attitude of the prisoners.

23. I would therefore impose the following sentences:

(1) Kait Lonu - 16 years in jail.

(2) Douglas Gemo - 16 years in jail.

(3) Alfred Besek - 16 years in jail.

(4) Johndik Modo - 16 years in jail.

(5) Mulide Judah - 16 years in jail.

(6) Amos Judah - 16 years in jail.

(7) Keddy Lonu - 16 years in jail.

(8) Lance Judah - 16 years in jail.

(9) Peter Biul - 17 years in jail.

24. Peter Biul is given 17 years because he is the principal offender. He is the one who swung the knife that killed the deceased, Kau Selep. The 17 years is reflective of the principal role he played in this unlawful killing.

25. All the jail sentences I imposed will be served at the Beon Corrective Institution outside Madang town. I will further order that all cash bail monies of K300.00 each and severally paid by the prisoners on account of their respective bails, be refunded back to the prisoners and finally, I will order that all pre-trial custody period spent in custody awaiting trial be deducted from the final sentences imposed on each prisoner. All monies paid on account of bail for the prisoners be refunded.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused