N5195 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 334 OF 2011

THE STATE

V

ISINGI TAMBUKIN &
ABLINO TAMBUKIN

Porgera: Gauli AJ
2013: April 16, 19.

CRIMINAL LAW – Sentence- Guilty after trial - Murder - Criminal Code, s.300 (1) (a) - Group attack - Used offensive weapons, bush knives and axes - Chopped on the head, neck and side of the face - Motive for murder - Pre planned - No remorse - No priors - Aggravating factors outweighed mitigating factors- Sentenced to 20 years each - Time in custody deducted - No suspension of sentence

Cases Cited:

Goli Golu v. The State (No.3) [1982] PNGLR 92
Avia Aihi v. The State (No.2) [1982] PNGLR 93
Manu Kovi v. The State (2005) SC 789
Thress Kumbamong v. The State (2008) SC 1017
The State v. Jacob Puti (Unreported) CR. 338 of 2011; 12/04/13.
The State v. Lawrence Mattau (Unreported) CR.920 of 2006; 18/11/08. 
Simon Kama v. The State (2004) SC740
Lawrence Simbu v. The State [1994] PNGLR 38
The State v. Maria Err [1998] PNGLR 26.
The State v. James Makot & Or [1998] PNGLR 62.
Maxom Sumba v. The State (Unreported) Supreme Court Judgement dated 29/11/1996.
Nancy Paul Paped v. The State (Unreported) Supreme Court Judgement of 1996.
Wampia Wampa v. The State (Unreported) Supreme Court Judgement dated 15/05/1996.
The State v. Alon Ayiu Togu (Unreported) National Court Judgement of February 2004.
The State v. Eddie Kava laura (No2.) [1988-89] PNGLR 98.
The State v. Mupa Lom (Unreported) CR.12 of 2012; 22/06/12. 

Counsel

Public prosecutor, for the State
Public Solicitor, for the Prisoners

SENTENCING

19th April, 2013 

1.	GAULI AJ: The prisoners Isingi Tambukin and Ablino Tamabukin, were found guilty and convicted after a trial on one count of murder, charged under Section 300 (1) (a) of the Criminal Code. 

BRIEF FACTS: 

2.	The prisoners Isingi and Ablino are blood brothers, the sons of Tambukin. They are from Yamala village, Laiagam District in Enga Province. They belong to Wei sub-clan of the Makol tribe. 

3.	On 24 December 2009 in the morning between 8.00 and 10.00 o'clock, at Yamala village in Laiagam, the accused and others took a dead body to bury in a garden near Kimbun Norm's resident. They shouted that they were coming to bury the dead body there. Kimbun Norn, his wife Wakend and his son Freddy and others were in their house preparing breakfast. The accused and their group began digging the grave and clearing the area. Kimbun Norm, his wife and son and others with them went out to see what was happening outside. Kimbun Norm approached the group and he told them to take their dead and bury it somewhere else because that is his garden and it is near their drinking water source. 

4.	A man by the mane of Andreas tripped Kimbun's leg and he fell down. When Kimbun tried to get up, the Accused Isingi Tambukin swung his bush knife and he cut Kimbun on his chick and he fell down. Then the accused Ablino Tambukin cut Kimbun on his neck with an axe and others also cut him. Kimbun died instantly. Immediately after the accused Isingi and Ablino cut Kimbun, his wife and son and those who were with them ran away. 

ANTECEDENT REPORT: 

5.	Both prisoners have no prior convictions.

ALLOCUTUS:

6.	The prisoners were given the opportunity to tell the court on matters they would like the court to take note on in sentencing. And this is what each of them said: 

Isingi Tambukin: "I am sorry to this Court. The court has found me guilty of the charge. I cannot do anything. All my family will be in prison. I only ask if one of us be released while the other serve the sentence on behalf of us. So we can look after our families as we have the responsibilities to look after our families. I ask if our terms of sentence be reduced. That is all". 

Ablino Tambukin: "I have nothing to say. What I want to say has been said by my brother. I am sorry for wasting court's time. If both of us go to jail, no one will look after our families. I ask the court to reduce the terms of our sentences. I say sorry to the court. That is all". 

PERSONAL PARTICULARS: 

7.	Ablino Tambukin: He is 32 years old from Yamala village, Laiagam District. He is married with three children aged 8, 5 and 3 years each. He is the 4th born in a family of 4 brothers and 1 sister. He has no formal education or employment. Offence committed on 24 December 2009 and he was arrested sometimes in September 2010. He is in custody for 2 years and 6 months.

8.	Isingi Tambukin: He is 25 years old, married with one child. He is the brother of the co-accused and he is the 5th born in the family. He was arrested at the same time as the co-accused. 

MITIGATING FACTORS: 

9.	They are both first time offenders. They are each family men. 

AGGRAVATING FACTORS: 

10.	The accused were amongst the group when they killed the deceased. The accused Isingi was armed with a bush knife while Ablino was armed with an axe. They used their weapons and chopped the deceased. 

LAW: 

11.	The accused are each charged for murder under Section 300 (1) (a) of the Criminal Code which states as follows: 

300 Murder

(1)	 Subject to the succeeding provision 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 a person killed or to some order person; or 

(b)	 ....... (d) 

Penalty: Subject to Section 19, imprisonment for life. 

19 Construction of provisions of Code as to punishment: 

(1)	 In the circumstances of this Code, it is to be taken that, except when it is otherwise provided – 

(a)	A person liable to imprisonment for life or for any other period, may be sentenced to imprisonment to any shorter term; and 
(b)	..... (f).....
 
12.	By the operation of Section 19 (1) (a), the court has considerable powers to impose lesser term of sentence instead of a prescribed maximum penalty of life year imprisonment. It is also an established law that maximum penalty is reserved only for a worst category of cases under consideration before a court: see Goli Golu v. The State (No.3) [1982] PNGLR 92; Avia Aihi v. The State (No.2) [1982] PNGLR 96. 

13.	In Manu Kovi v. The State (2005) SC789, the Supreme Court set out the guidelines on sentencing for the offences on wilful murder, murder, manslaughter and infanticide but the later decision of the Supreme Court in Thress Kumbamong v. The State (2008) SC1017 has criticised the sentencing guidelines in Manu Kovi in that a Judge should use the discretion vested in a trial and not be restricted by the minimum and maximum sentences proposed in Manu Kovi. 

SUBMISSIONS BY DEFENCE:

14.	The defence counsel submitted that the prisoners are found guilty and convicted of murder which carry a maximum sentence of life year imprisonment but subject to Section 19 of the Criminal Code where court can impose a lesser term of sentence. The court is aware of the principles of law that maximum penalty is reserved for the worst category of cases. The present case is not the worst type of murder. This case falls within Category 2 of Manu Kovi (above), a sentence between 20 - 30 years, but that has been criticised in Thress Kumbamong (above). The court to use its vested discretions and impose a sentence between 16 - 20 years imprisonment. Both prisoners are first time offenders and the killing was not pre planned but it occurred suddenly following an argument with the deceased Kimbun Norm. The prisoner each struck the deceased person only once, therefore the counsel submitted a sentence between 16 - 20 years. 

SUBMISIONS BY STATE: 

15.	The State conceded with the submission by the defence that the offence for which the prisoners have been convicted of carry a life year imprisonment but subject to Section 19 of the Criminal Code. And the maximum sentences are reserved for the cases that are in the worst category. He referred to Goli Golu and Avia Aihi (above). Prosecutor also referred to my recent decision in The State v. Jacob Puti, (CR. 338 of 2011; dated 12/04/13) that the court to use its discretion in the exercise of its powers in sentencing and that the sentence guidelines in Manu Kovi (above) though useful should only be used as a guide. 

16.	 And in the case of The State v. Lawrence Mattau (Unreported) CR. 920 of 2006; 18/11/2008, Kandakasi J, adopted the Supreme Court decision in Simon Kama v. The State (2004) SC740 and Thress Kumbamon v. The State (supra) that court should not further categorize sentences in homicide case. 

17.	Prosecutor submitted that this is an aggravated murder were offensive weapons were used and multiple parties involved on the attack of an innocent and unarmed person. There were multiple injuries and all life threatening that it makes this case even more serious. There was motive as there was a prior bad blood relationship between the parties over compensation payment previously for the death of the deceased's brother. 

18.	Murder, being a serious and violent crime, should attract immediate custodial sentence. But each case must be determined on its own facts and circumstances as per Lawrence Simbu v. The State [1994] PNGLR 38. Prosecutor referred to the following cases where sentences between 8 - 15 years were imposed for murder cases on plea of guilty: The State v. Maria Err [1998] PNGLR 26 (26 years); The State v. James Makot & Ors [1998] PNGLR 61 (10 years); Maxom Sumba v. The State (Unreported Supreme Court judgement; dated 29/11/1996) (9 years); Nancy Paul Paped v. The State (Unreported Supreme Court Judgement in 1996) (12 years); Wampias Wanpa v. The State (Unreported Supreme Court Judgement date 15 May 1996) (15 years) and The State v. Alon Ayui Togu (Unreported National Court Judgement in February 2004) (12 years). In the present case it was a group attack on an innocent unarmed and defenceless person. The attack was vicious by the use of offensive weapons. And the State submitted that a sentence between 10 - 15 years as appropriate. 

DECISION OF THE COURT: 

19.	 The principles of law on sentence in murder cases are as prescribed above by both the State and the defence counsel and I do not need to state them again. It is a trite law now that a court or a Judge can use the discretion provided by Section 19 (1) of the Criminal Code and the decided case laws to arrive at an appropriate sentence to impose based of course on the circumstances and the merits of the case under consideration before him or her. 

20.	I agree with the Prosecution counsel that in this case there are aggravating features. Offensive weapons such as bush knives and axe were used in the commission of this crime. The deceased was unarmed and defenceless. When the deceased approached the accused and their group and asked them if they could find another place to bury their dead because that particular location was his garden and closer to their drinking water source, he was attacked and murdered on the spot and in the presence of his family members. I am lead to believe that the accused and their group of people had an ill motive in bringing their dead to be buried on that piece of land near the deceased's residential area and garden. They did not attempt to negotiate with the deceased Kimbun Norm if they could bury their dead in that land before bringing the body for burial. The accused and their group have a motive. It was pre planned. And that places this case to be in a worst category case of murder. 

21.	The accused Isingi Tambukin was the first person to chop the deceased with his bush knife on his cheek or jaw as soon as Andreas tripped him down. Then the co-accused Ablino Tambukin chopped him on the neck with an axe and others chopped him on the head with axe and or bush knives. The blows by the accused Isingi and Ablino were life threatening even though both swung their weapons only once at the deceased. The use of any offensive weapon against another which blows are directed at any vital part of the body does establish that there is an intention to do grievous harm to that other person. 

22.	Murder is a very serious and violent crime and it is the most prevalent offence here in Enga Province. It seems that a life of a person has no value at all to them. They could not reason out problems or complaints in a reasonable way except by bush knives, axes or guns. Where the offence is one of prevalent in an area, it calls for stern imprisonment terms with a view of having a deterrence effect to future like offenders. 

23.	In The State v. Eddie Kava Laura (No.2) [1988-89] PNGLR 98, late Kidu CJ, proposed a guideline on sentences for murder as follows:

(a)	 6 years - on plea of guilty with no aggravating factors.
(b)	Less than 6 years - where there are special mitigating factor such as youthfulness or advanced in age of the offender.
(c)	 12 years or more - on plea of not guilty with aggravating factors. 

24.	The case of Manu Kovi (supra) in 2005 further refines the guidelines which has made increases on sentence but this have been criticised in Thress
Kumbamong (supra). In The State v. Mupa Lom (Unreported) CR. 12 of 2012; dated 22/06/12, in Wabag, I sentenced the accused to 18 years imprisonment where he murdered his own wife when he found her having affairs with another man in a garden. 

25.	The term of sentences proposed by the State in the present case, in my view are quite lenient, when considering the prevalent of murder in this province. I take into account that the offence of murder is so prevalent and the circumstances in which the killing took place in this case had aggravating features present. The accused have shown no remorse towards the deceased's relatives though they say sorry to the court. The accused are found guilty after a trial. I consider that a term of 20 years imprisonment as appropriate. 

26.	I do take into account their mitigating factors. The accused are both first time offenders. The aggravating factors far outweighed the mitigating factors. The accused have raised concerns about their families that there will be no one to take care of them. This is a common concern raised in every case on sentencing. Family concerns are not an exceptional reason. If one is concern of his or her family, he must think before he or she acts to commit an offence. The accused in their allocutus ask the court if only one of them could serve the sentence for them both so that the other could take care of their families. There is no law in our jurisdiction that allows for such orders or arrangement be made by the court. Our laws allow that each offender must be punished for his or her own wrong doing. The offender must be responsible for his criminal liability. 

27.	Both accused have being in custody for two (2) years and six (6) months awaiting their charges to be heard by the court. The period in custody will be deducted from their sentence of 20 years. 

28.	I have considered whether I should suspend sentence either wholly or part. Suspending sentences either wholly or in part is not an exercise of leniency, but it is a form of punishment aimed at allowing the prisoner to reform in the community where he lives: see The State v. Lawrence Mattau (above). However, I do take into account of the evidence of the accused Isingi Tambukin during cross-examination where he said that they are still angry about their compensation payment for the death of Jacob Norm in 1992 that was disrupted by the deceased's brother Iso Norm. And in the present case, the accused have made no compensations for the purposes of maintaining peace amongst the two families. Under those circumstances I am not convinced that the sentence be suspended either wholly or in part. 

SENTENCE: 

1.	ISINGI TAMBUKIN and ABLINA TAMBUKIN you are each sentenced to 20 years imprisonment in hard labour. 

2.	A period of Two (2) years Six (6) months is deducted for time you already spent in custody already.

3.	You will serve the balance of 17 years 6 months at Baisu CIS in the Western Highlands Province. 

Sentenced accordingly.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners