N6934

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1060 of 2014

THE STATE
V
ELIJAH DOMINIC KUVI

Kimbe : Miviri AJ
  2017	 : 12th,13th ,21st September

CRIMINAL LAW – Trial - Wilful murder S299 CCA - deceased shot with shotgun - chest injury - deceased unarmed - prevalent offence - sanctity of life - S35 Constitution - life years Imprisonment.

Facts

Accused armed with a gun aimed at the deceased shot him in the left side intending to kill him and killed him.

Held

Broad daylight shooting with shotgun
Dangerous lethal weapon no chance for survival
Deliberate calculated offence
Deceased unsuspecting unarmed
S35 Constitution right to life
Sanctity of life
Life imprisonment

Cases cited:

Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510 (19 December 1980)
Hane v The State [1984] PNGLR 105 (28 May 1984)
SCRA 29 OF 2007 Thress Kumbamong v The State (2008) SC1017
SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996),
State v Hagei [2005] N2913 
The State v Allan Peter Utieng Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 
The State v Aihi [1982] PNGLR 92,
The State v Ben Simakot Simbu (N0.2) (2004) N2548,
The State v Beng [1977] PNGLR 115 (2 May 1977)
The State v Jaminan [1983] PNGLR 318 (29 September 1983)
The State v Kovi [2005] PGSC 34; SC789 (31 May 2005)
The State v Lawrence Simbe [1994] PNGLR 38 
The State v Madiroto [1997] PGNC 29; N1554 (20 March 1997)
The State v Ombusu [1996] PGSC 28; [1996] PNGLR 335 (2 April 1996)
The State v Paege and Tanda, [1994] PNGLR 65 (24 June 1994) 
The State v Pawa [1981] PNGLR 498 (27 November 1981)
The State v Tubol [1994] PNGLR 378 (12 April 1994)
The State v Ume [2006] PGSC 9; SC836 (19 May 2006)
The State v Visari [2006] PGNC 61; CR 1455 of 2005 (15 June 2006)

Counsel:

L. Rangan, for the State
B. Popeu, for the Defendants
					SENTENCE
6th October, 2017 
 
1.	MIVIRI AJ: After trial for the wilful murder of a man he shot with a shotgun intending to kill him, this is the sentence of the Prisoner who was found guilty. 

Background Facts 

2.	Elijah Dominic Kuvi was armed with a shotgun on the 6th March 2012. He pointed it at John Pinda pressed the trigger and shot him on left side. He intended to kill him. John Pinda died as a result of the gunshot.

Allocutus

3.	In allocutus, he said:

“In our family we are five male and five female. Our big brother was killed in 2016 and so I am the elder now since his death. All our sisters are married. Big brother was married. I am married and have two children. The first is 2 years old and the second is 4 months old. Our parents are old. I have 12 hectares of oil palm. Whilst I am in custody life is hard for wife and children. There was a big fight in the village and my mother was shot unconscious”.

Mitigation

4.	Counsel for the prisoner submitted as follows the offence carries the death penalty. It was clan warfare and not the worst type. Prisoner is a first offender. It is not a vicious killing only one shot that killed the deceased. It was not brutal. He was not accompanied in the killing. It was not pre planned that John Pinda should be killed. In accordance with the guidelines in Kovi v The State [2005] SC789 it was a category 2 matter that the lower scale be accorded. That a term of years be imposed. There was no strong and persistent attack and the injuries were not severe. 

Prosecution submission

5.	Counsel for the State submitted the case of State v Madiroto [1997] N1554 where between, 5:00 pm - 6:00 pm that day, prisoner was cooking bananas near his mother’s garden when the deceased approached and said something to the effect that, he should not be cooking bananas there as it was not his area.  She then left for her garden house.  Then approximately 10 o’clock in the night, prisoner went to the deceased’s garden house with the intention of burning her with her house, however, when he reached her, he didn’t carry out the intention.  Instead, he dragged her out of her house by her hands then burnt her house. He then commenced to assault the deceased with his hands.  Later dragged her to a nearby creek and threw her face down against the stones with her forehead hitting the stones.  After that, he took stones from the creek and began stoning the deceased on her head.  Later squeezed her throat and at the same time pushed her head into the water in the creek.  He kept her head inside the water until she died then released her. The court imposed life years imprisonment because the state had not submitted for it. That was 13 years ago. The offence was prevalent as ever. It was a trial as opposed to a plea. Here he specifically pointed and picked out John Pinda and shot him. He was an innocent person. There was pre planning and a shotgun is a dangerous weapon. A strong sentence should be imposed. In accordance with Manu Kovi (supra) it was category 2 jail term of 20 to 30 years and category 3 life years imprisonment.

Law

6.	Under Section 299 Wilful Murder, the prisoner is liable to be sentenced to death. It is the most serious of the homicide offences. Murder under section 300 is next most serious where there is intent to do grievous bodily harm or where in the course of a robbery for example an unlawful act in the course of which death culminates the maximum sentence is life imprisonment. The least serious is manslaughter under section 302 which is unlawful killing or killing against the law maximum sentence is life imprisonment. The people through the parliament have classified or demarcated the different homicide offences. Other than that the sentencing discretion in respect of each is broad and never fettered Thress Kumbamong v The State (2008) SC1017; and each case is depended on its own set of facts and circumstances to draw out an appropriate penalty: Lawrence Simbe v The State [1994] PNGLR 38. The Criminal Code itself also seals by Section s. 19(1)(aa) providing:

“(1) 	In the construction of this Code, it is to be taken that, except when it is expressly otherwise provided —
(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term.” 

7.	So whether or not the maximum penalty of death is imposed here, or not, is depended on the facts and circumstances, mitigating as well as aggravating and any special extenuating circumstances to arrive at the proportionate penalty. In Aihi v The State [1982] PNGLR 92, whilst all the members of the Court used the words "worst case type" or "most serious type of case", there was no listing of the worst type of cases. Each member, instead, referred to the surrounding extenuating or aggravating features and decided accordingly. The then Chief Justice said at p 96, "What is 'the most serious type of case' of any offence is very difficult to define with scientific precision. I cannot attempt a definition myself." At the end of that case, the Supreme Court affirmed the maximum penalty.” In Paege and Tanda, The State v [1994] PNGLR 65 the Public Prosecutor did not ask for the maximum penalty of death. And the court viewed that he was the representative of the People if he did not ask that was the wishes of the people the court imposed life years. Respectfully I beg to differ and hold that it is determined by the facts and circumstances whether counsel on either side of the bar submit otherwise the ultimate discretion is of the court to so impose and appropriate accordingly. As the sentencing discretion is a delicate balancing act Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510.

8.	The case of Hane v The State [1984] PNGLR 105 categorizing as “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender. With respect it is my view that these are guidelines only and do not substitute the dictate of the legislature set out in the penalty provision set. The level of violence exerted in a given case may determine but not reclassification or categorizing what has been settled by legislature already. In Ume v The State [2006] SC836 the death penalty was set aside and life years was imposed. Interestingly Ume’s case is set here in Talasea similar situation of a tribal conflict where the mother became the victim and died for the actions of the son. She was subjected to indignities, raped then killed. The penalty of death was set aside as there was no evidence on the rape by the Supreme Court. It is therefore a question of the facts circumstances the evidence that will determine what sentence is proportionate to the criminal conduct before the court.

9.	Here is a case of wanton shooting as in the case of Ume the setting is Ganeboku in Talasea. Evidence is that the fighting started on the 4th, 5th and the 6th March 2012 where Prisoner killed John Pinda. Three days later retaliation saw Paul Loke shot and killed in revenge for John Pinda. This is the spiralling effect of criminal actions upon criminal actions derailing the rule of law bearing fruit to anarchy and chaos. Prisoner fuelled that fact his actions led to another criminal act another unnecessary death. This circle of violence must be stopped. It is nothing but complete defiance of the law and the rule of law where the prisoner simply walks up in broad daylight and shoots John Pinda at will killing him. He has shown nothing before this court to show that he is sorry for what has happened here. There is no evidence before me that he is sorry for his actions committed upon the deceased.

Issue

10.	What then is the appropriate sentence here?

11.	Hane (supra) Justice Bredmeyer set out the following: - 

(1)	A wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape. 
(2)      A wilful murder of a policeman or a prison warder acting in the execution of his duty. (3)      A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody 
(4)      A wilful murder of a person in police or court custody. 
(5)      A payback killing of a completely innocent man. 
(6)      Any second or third murder. 
(7)      Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.  

That these are the categories which his honour considered drew out as worst cases of wilful murder and therefore drawing the death penalty. It is my view that this list is not exhaustive because a death is a death there is no distinction be it by a shotgun shot with pellets to the chest of the deceased killing him, or  persistent beating with a weapon coupled with the use of an oil palm sickle, or a fist to the face a backward fall hitting the head on a hard surface internal bleeding and death culminating, a use of an axe or knife to stab and to cut up the deceased with death resulting, hit with a blunt instrument death culminating, all are one way or another death to the victim, who will no longer for all intent and purposes ever be seen amongst the world again ever. Life is only lived once and no man can ever return. It is therefore a fundamental right under the Constitution section 35 and which right can only be taken by due process of law not otherwise. All man are equal unto the law the deceased as well as the prisoner no one is above the law. Justice is blind and equal to all should therefore the prisoner be given his right to life over and above that of the deceased his victim, or are both equal in the eyes of the law and the Constitution? Is that the case with the prisoner here and the deceased John Pinda? It would be clearly unconstitutional to treat one over and above the other both being equal unto the law and the rights are applicable equal without any distinction. 

12.	Thus should therefore the prisoner be sentenced to death here? It is not a minimum penalty situation as in SCR 1 of 1994 in Re Aruve Waiba (Unreported Supreme Court judgment of Los J and Salika J handed down in 1996), so clearly the answer is no consideration and weighing of all circumstances facts both mitigating and aggravating together with any extenuating circumstances will lead to a proportionate sentence given.

13.	Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) was relied upon by the defendant through his counsel submitting that category 2 at the lower end. But the Prosecution urged category 3 that life years be imposed. Given the circumstances here respectful it is my view that guidelines will be one amongst many factors that will be considered in the sentence in a given case. Guidelines will not been seen as fettering the sentencing discretion. So whether it is category 2 or 3 will be one of the factors with all others to arrive at the just sentence.

Aggravation 

14.	This was a deliberate act by the prisoner. And I do not use the word deliberate lightly because it was calculated and plotted in the way that he sought out John Pinda in broad daylight amongst Alois Lavu, Dominic Gorea, John Lutu, and Fidelma Raka present there.  It was 10 meters apart when he discharged the shotgun aimed at John Pinda. John Pinda was defenceless and unarmed. Evidence before police tendered by consent in court as part of the prosecution evidence was that because of the killing by the prisoner of John Pinda, his relatives retaliated in revenge three days later and killed one Paul Loke a relative of the prisoner. And evidence by both parties before the court is that John Pinda is from Nangi clan which was associated with Kaumukolo enemy of the Rupopo which is the clan of the prisoner as his mother is from that clan. And he was there because he had gone sent by his mother to save his Uncle Dominic Kuvi Senior blood brother of his mother whose house was burnt down in the fight which had started 4th ,5th and 6th March 2012 the date when John Pinda was killed. That at that time there was fighting in Ganeboku main village situated on top overlooking down two or three kilometres to Golpugo where John Pinda was and where he was shot. Given this facts and evidence it is safe to infer that the prisoner acted out of the ongoing fight between the clans at that time. In the evidence he was at the fore front of the group that descended upon Golpugo killing John Pinda that morning. Counsel defending has rightly submitted it was a tribal warfare and from the evidence the prisoner was the leader at the front of the group. He led with the clear and calculated intent to kill and did kill.

15.	But the setting in Gulpugo where the shooting took place where all state witnesses were sitting down, talking unsuspecting an attack of the nature perpetrated by the prisoner. That is clear because in the evidence of the state witnesses they took whatever they could lay their hands on to chase away the prisoner and the others who accompanied him. They were at peace and did not need the violence that was perpetrated upon them by the prisoner. It should also be illuminated that Talasea where the prisoner originates from is forever rampant with violence even after 42 years of independence; this offence is very prevalent there, and the evidence is in the Kimbe criminal list pending and outstanding. Resorting to violence want on killings is rampant there. Even the strong influences of mission particularly the Roman Catholic Church and other sister Christian church there has not deterred or curbed this level of violence drawn deep from tribal lines, clan lines and village lines. The people are no longer without basic education and know how in this modern world. Accessibility into modern life is within the village and this level of violence must be deterred and stopped 42 years on after independence. It is the one factor that is seriously effecting the advancement of that district and the province economically because the Province and the District is oil Palm based which is constantly threatened by this behaviour. In fact before this court the main village of Ganeboku fought because of dispute over the leadership and local company Kavugara Development Corporation which is primarily the oil palm facilitating company of the people there. It is important that the sentence imposed here must address.

16.	In Ombusu v The State [1996] PNGLR 335 the appellant there had committed rape and the father of the victim came with a deadly weapon a shotgun in search of the appellant, confronted him and in the course of which was shot by the appellant who was also armed with a shotgun. The sentence of death was set aside because wilful murder being serious should have been tried on its own not with the rape together and at the same time.

17.	Here as in Ume’s case (supra) is the propensity of violence again in that particular area undeterred. Even though a sentence of life years was substituted for the death penalty in that case because there was no evidence of the rape before the court. The prisoner has not retaliated over a payback situation or revenge as in that case. Nor has he acted in other to save himself as in Ombusu (supra). But he is likened to State v Ben Simakot Simbu (N0.2) (2004) N2548  where he has killed senselessly without regard for human decency and the sanctity of life. In State v Ben Simakot Simbu the accused was sentenced to death for a double murder of a mother and her young child. The offences took place on 19 July 2002 in Vanimo, Sandaun Province. The accused in the above case went to the victims block and requested to get a live chicken on credit basis so that he could pay for it later whenever he got the money. The victim refused and the accused repeated his request the second and third time. On the third time, when the adult victim refused, the accused grabbed her and forced her down to the ground and thereafter, he forcefully had sexual intercourse with her. 
After having sex with the victim the accused got a piece of iron and hit her across her head causing instant death. He got the same piece of iron and hit the child on its head. The child died instantly as well. The trial judge found that the killing in the above case was in the worse type category imposing the death penalty.

18.	That is not the case with the prisoner here there is no reason for the pulling of the trigger against John Pinda. It is a single death instant death but the same was so of the mother and the child in State v Ben Simakot Simbu. It may be likened to State v Poroli [2004] N2655 policeman was told by the prisoner to say his last prayers and then was shot on the head and the body dumped down a deep ravine. It was an inhuman and barbaric killing of a policeman who was doing his duty as a policeman. The court imposed the death penalty. That was calculated and it was clear in the mind of the prisoner what was intended when he told the deceased policeman to kneel and to pray his last. Here that is not the case the prisoner fronted up 10 meters away from the deceased raised the gun and aimed and discharged with serious consequences as was done in Poroli’s case (supra) but he picked out the deceased from the others who were there. In that sense he knew in his mind by his overt action who he wanted killed. The deliberate aiming and discharging of the shotgun 10 meters away from the deceased who is unarmed can only be seen deserving no mercy as in the case where a guilty plea is entered and there are circumstances as in the State v Hagei [2005] N2913 where the prisoner raped the victim who tried to run away naked, the prisoner chased after her punched her causing her to fall to the ground, as she did he picked up a stick hit the back of her head causing internal injuries to the neck and the head from which she died.  This court imposed life years upon the prisoner because of the extenuating circumstance that as soon  as he was taken in by Police he was taken to the relatives of the deceased girl who severely beat him up speared him with spear that come out just below his chest. He died and his body was wrapped up with plastic and as he was about to be put in the morgue when he became alive again. He pleaded guilty before this court the death penalty was envisaged but not pursued because of this extenuating circumstance.

19.	Which include defacto provocation, duress, or cohesion, or compulsion, the degree and extent of the prisoner’s participation in the crime, medical condition, lack of sophistication, traditional custom practises beliefs, which influence and offenders behaviour to act as he did. But they stand out to attract the death penalty because of the peculiar facts and circumstance which are unto themselves exceptional horrendous heinous of such moral turpitude that no other sentence other than the maximum prescribed would be proportionate to the facts and circumstances laid out. 

20.	There is no defacto provocation offered by the deceased or anyone of the witnesses and persons present at the time that the deceased was shot. There is no duress, cohesion, or compulsion here. The prisoner fully participated in the act he is the author of the death of the deceased. It was his intent that the deceased die and he did carry out that intent to fruition. No one forced him to do what he did nor was he enticed or lured or under duress to do what he did. No evidence is before me to sway otherwise other than he being primarily elementarily responsible for what was caused. There is no evidence of an impending medical condition apparent identifiable to sway that it was these that caused him to do what he did. He was employed with a construction company at Mosa before he was incarcerated. Meaning that he was educated to get that employment and sustain his family. He has been exposed to the modern world and cannot be an unsophisticated person and that is borne out by his use of the shotgun on this day of the wilful murder. Without any education he would not have known how to use a gun. He is married with two children 2years old and second 4 months old. 

21.	State v Kiapkot [2011] N 4381, Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul and Botchia Agena were all sentenced to death for the wilful murder of 8 persons killed at sea between Namatanai New Ireland Province and Kokopo East New Britain Province.  Each prisoner was sentenced to 8 wilful murder convictions all drawing individually 8 sentences of death. They killed and disposed of the bodies at sea only two bodies were seen one was recovered but not the other.

22.	There were multiple deaths and also further criminal actions of piracy at sea were perpetrated as was the case of State v Ben Simakot Simbu drawing the death penalty in each case. Here there were no additional criminal conducts except for the shooting of the deceased who died instantly who was not tortured as in State v Madiroto (supra) where life was imposed; with respect it showed a death penalty case more than life sentence. Because it was persistent leading from one act to the next until finally the deceased succumbed to the high level of violence perpetrated. Here the deceased was shot and died instantly he was not put under as was the case of State v Madiroto (supra).

23.	John Pinda had a right to life under section 35 of the Constitution. That was taken away against the law by the prisoner. And he did so with a lethal weapon a shotgun which was fired at close quarters. In so doing it was clear John Pinda would not survive at that distance. Like the prisoner he too had a family and would not ever go back to his family ever. Prisoner has pleaded in his allocutus that any sentence imposed must heed that he has a family and that his family circumstances be considered. Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 has stated very clearly that it is too late to put up family circumstances as that ought to be in the mind of the prisoner at the time he commits the offence. It ought to prevent stop him from the commission of the offence. It will be too late to put that up in the face of a sentence due in law.

24.	This is not a sorcery related killing as in State v Visari [2006] PGNC 61; CR 1455 of 2005 (15 June 2006) so the sentence will not be likened to that. Here too it will not be that it was a tribal war fare so sentence accordingly. The tribal ware fare is a criminal act by itself and use of a shotgun as here is also a very serious criminal act. The country just three weeks back celebrated its 42 years of Independence. The use of a shotgun as here in tribal conflict is a very serious cause for concern as if left unchecked it will create chaos in law and order in that district or any other district or place for the same. It is very prevalent offence in that area and around the country. And is wanton as if life is not sacred. It must be stopped with strong and punitive sentences against those who so commit as here. 

25.	There is only one term of years that I can consider in view of the circumstances of this case and the surrounding aspects, and that is life imprisonment.

26.	I sentence you, Elijah Dominic Kuvi to life imprisonment.
____________________________________________________________
Public Prosecutor	: Lawyer for the State		 
Public Solicitor  	: Lawyer for the Defendant