State v Josh [2020] PGNC 61; N8258 (12 March 2020)

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CRIMINAL LAW– sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender's members of a group that ambushed another group, killing ten members of the other group – each offender convicted of one count of wilful murder.

Two offenders were charged with ten counts of wilful murder arising from an incident in which members of a tribe ambushed and killed ten members of another tribe. Each offender was, after a joint trial convicted of one count and acquitted on nine counts of wilful murder. The victims were different. The first offender shot and killed his victim, intending to cause his death. The second offender cut this victim with a bush-knife, intending to cause his death.

Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona& Greg Kavoa v The State (2006) SC836
The State v Andrew Manga (2017) N6998
The State v Chris BaurekCR 146/2009, 26.05.10
The State v Chris George Josh &Livai Solomon (2019) N7915
The State v DoniKakiwi& 96 Others (2018) N7385
The State v IsakWapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591
The State v Luther Francis Melo (2016) N6267
The State v Mark Bongede (2012) N4683
The State v Mathew Lewaripa (2015) N6151
The State v Mathew Misek (2012) N4561
The State v Moses Nasres (2008) N3302
The State v Seth UjanTalil (2010) N4159
The State v Tun Mai Isaac (2014) N5595

1. CANNINGS J: Chris George Josh and Livai Solomon were each convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code. It was established at the trial that they committed the offences against two victims in the following circumstances.

2. On Tuesday 26^th of April 2016, there was an incident at Mutzing station, Markham District, Morobe Province, in which some students from the nearby Markham Secondary School took a can of Pepsi soft drink from a vendor without paying for it. A fight started because of this, which led to a conflict between members of the Amari tribe and members of the Atzera tribe. Both offenders are members of the Atzera tribe.

3. On Wednesday 27^th April 2016 the fighting continued and classes at the secondary school were disrupted and some Amari students were assaulted and prevented from going to school.

4. Early on the morning of Thursday 28 April 2016, Amari tribesmen gathered at Umi market and started to march along the Okuk Highway, in the direction of Lae, to Zumim 1 and Zumim 2, where members of the Atzera tribe lived, to protest about ill-treatment of the Amari students. There were 500 to 600 men in the Amari group, some of them armed with weapons such as spears, sticks and bush knives. Between 7.00 and 9.00 am, as the Amari group was between Antiragen and Zumim 1, they were ambushed by a group of Atzera tribesmen who had been waiting for them. Shots were fired from firearms into the Amari group, and ten Amari men were killed, death being inflicted by gunshot and/or knife wounds. Those killed were:

5. At the joint trial the offenders were each indicted on those ten counts of wilful murder. They were each acquitted on nine counts and convicted on one count of wilful murder.

6. Chris George Josh was convicted of the wilful murder of Peter Muruai (count 7). Livai Solomon was convicted of the wilful murder of Matia Rabang (count 1).

7. It was proven beyond reasonable doubt that Chris George Josh shot with a gun, after aiming at him from close range in a vulnerable part of his body, and unlawfully killed Peter Muruai, intending to cause his death.

8. It was proven beyond reasonable doubt that Livai Solomon stabbed and cut with a bush knife, on multiple occasions on vulnerable parts of the body, and unlawfully killed Matia Rabang, intending to cause his death.

9. The State led no direct evidence as to how the eight deceased other than Peter Muruai and Matia Rabang were killed or who killed them and failed to prove that either Chris George Josh or Livai Solomon should be convicted of more than one count of wilful murder each. Further details of their convictions are in the judgment on verdict, The State v Chris George Josh &Livai Solomon (2019) N7915.

I am innocent of this charge but somehow the Court has found me guilty. God only knows who is telling the truth and who is lying.

I respect the decision of the Court but I did not commit this offence. I was not present and have no knowledge of what happened. I wish grace, love and peace for the Court. I have a wife and two children to care for. The education of my children has been greatly affected by my imprisonment

13. The Madang branch of the Community Based Corrections office prepared the pre-sentence reports.

14. Chris George Josh is aged 30, unmarried and has no dependants. He was living with his father in their home at Zumim 2 village at the time of the offence. His mother is deceased. He is the fifth born in a family of seven children. He has a grade 10 education and has a certificate as a heavy equipment fitter from Bulolo Technical College. He has had employment as a driver and mechanic. He has a strong family support network and a good reputation in the local community. His health is said to be poor but there was no medical evidence to support that contention.

15. Livai Solomon is aged 32, married and has two children. He was living alongside his parents in their home at Antiragen village at the time of the offence. He is the second born in a family of five children. He has a grade 8 education. He had employment as boss-crew on a PMV bus. He has a strong family support network and a good reputation in the local community. His health is sound.

16. Character references from community leaders and family members have been provided for each offender; and these have been supplemented by character references from the Correctional Service, showing that each offender’s conduct at Beon Correctional Institution has been exemplary and positively helpful in maintaining peace and good order at the institution.

17. Both pre-sentence reports are, however, skewed in favour of the offenders and I have difficulty in regarding the reports as an objective assessment of relevant matters to take into account on sentencing. Both reports give the offender’s version of events, which is a rehash of their evidence at the trial, denying commission of the offences. There are also reports of interviews with family members and other persons who attempt to say why the offenders have been wrongly convicted. Some parts of the reports read more like submissions on verdict made by a defence counsel than an objective statement of the personal circumstances of the offenders and whether the deceased’s relatives are interested in compensation.

18. Despite the shortcomings of the reports, the material presented is of some value as it shows that shortly after the incident in 2016 in which ten men were killed, local parliamentarians and other leaders contributed public money towards a mass funeral and burial and a peace and reconciliation gathering involving the Atzera and Amari tribes. There was a reconciliation ceremony of some sort conducted in July 2019, but the details in the supplementary pre-sentence report are vague. There has been no specific or direct process of reconciliation between the relatives of Chris George Josh and the relatives of Peter Muruai or between the relatives of Livai Solomon and the relatives of Matia Rabang.

19. Mr Morog submitted that there are substantial mitigating factors – it was a tribal fight involving the death of many people and the offenders are the only persons to be charged over what happened, both offender shave no prior convictions and have cooperated completely with the Court and there has been significant progress towards reconciliation in the community– which bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the starting point 20 years imprisonment. The circumstances are unique in that there was a tribal fight involving hundreds of armed men on each side and many deaths, yet only two people are being held accountable for the consequences of the fight.

20. Mr Popeu did not agree that this is a category 2 case according to the Kovi guidelines. It is a category 4 case, warranting the death penalty. If the sentencing guidelines in Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 are applied, it is still a death penalty case given the number of men killed in the ambush, in which the offenders were directly involved. Mr Popeu submitted that the defence’s description of the incident as a tribal fight must be rejected and that there were no extenuating circumstances. Little can be said to mitigate the seriousness of the offences. The only small mitigating factor is that neither offender has prior convictions; however that is a minor consideration given the gravity of the offences, the callous nature of the deaths, the number of deaths and the fact that the incident erupted from a trivial incident that occurred a couple of days earlier involving the alleged theft of a can of soft drink.

21. To determine the appropriate penalty I will adopt the following decision-making process:

22. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1) (aa) of the Criminal Code, which states:

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

23. I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona& Greg Kavoa v The State (2006) SC836.

24. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

25. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty: (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (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; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

26. Under the Kovi guidelines I reject the defence counsel’s submission that this is a category 2 case. I also reject the submission of the State that this is a category 4 case. There are mitigating factors (no prior convictions, genuine attempts on behalf of offenders to engage in peace and reconciliation, high degree of co-operation with the Correctional Service and the Court) that militate against putting this case in the worst-case category. The convictions followed a trial. The use of lethal weapons, the fact that each offence involved a brutal killing, and the offenders’ involvement in an ambush and massacre mean that the case falls within category 3.

27. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. I reject the State’s submission that category (6) of those guidelines (killing of two or more persons) applies, as each offender was convicted for the death of only one person and the State failed to show that the offenders aided or assisted each other or that either of them was involved in the death of any person other than the deceased that each offender was found to have wilfully murdered. Therefore, the starting point is life imprisonment.

28. I have sentenced offenders for wilful murder in the cases summarised in the following table.

No	Case	Details	Sentence
1	The State v Moses Nasres(2008) N3302, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased’s head, killing him instantly.	Life imprisonment
2	The State v IsakWapsi(2009) N3695, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bush knife, severing the right leg and inflicting significant damage to the left leg.	25 years
3	The State v Chris BaurekCR 146/2009, 26.05.10, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bush-knives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years
4	The State v Seth UjanTalil(2010) N4159, Madang	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.	30 years
5	The State v Joel Otariv(2011) N4409, Madang	Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.	Life imprisonment
6	The State v Mathew Misek (2012) N4561, Kimbe	Guilty plea – the offender killed his wife by cutting her on the head with a bush knife, causing instant death – immediately prior to the attack the offender had an argument with her father over payment of bride price – a vicious and barbaric killing, there was a strong desire to kill.	Life imprisonment
7	The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591, Madang	Trial – four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people – the sentences reflected their varying degrees of involvement.	20 years, 20 years, 30 years, 17 years
8	The State v Mark Bongede(2012) N4683, Madang	Trial – the offender was in his village, entertaining a visiting dignitary – the deceased and his friends were drunk and being a nuisance – the offender became frustrated and angry, fought with them and then attacked the deceased with a bush knife, inflicting multiple wounds.	24 years
9	The State v Tun Mai Isaac (2014) N5684, Madang	Trial – the offender killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final – deceased offered no provocation – he was trying to stop the fight and was entirely innocent.	Life imprisonment
10	The State v Mathew Lewaripa (2015) N6151, Madang	Trial – the offender killed his wife by hitting her repeatedly with a shade tree stick and stabbing her several times on her back with a sharp object – the deceased offered no provocation – offender escaped from custody during course of trial.	Life imprisonment
11	The State v Luther Francis Melo (2016) N6267, Madang	Trial – the offender killed his wife by strangling and stabbing her – the incident occurred on a public road in the early hours of the morning as the deceased was on her way to work – she offered no provocation – there was no apparent motive for the attack.	30 years
12	The State v Andrew Manga (2017) N6998, Madang	Trial – the offender killed the victim in a drunken brawl at a clubhouse – victim unarmed and offered no provocation and was held by one of the offender’s friends at the critical time offender stabbed deceased three times – substantial compensation paid to deceased’s relatives – real attempt to reconcile.	24 years
13	The State v DoniKakiwi& 96 Others (2018) N7385, Madang	Trial – the 97 offenders marched in a group to a village, motivated by concerns about a number of deaths in the area attributed to sorcery – some suspected sorcerers had taken up residence in that village – on the way some members of the group attacked and killed a bystander – the group proceeded to raid the village and destroyed property and attacked and killed six village residents: one 20-year-old man, three elderly men and two young boys – eight offenders were found to have directly committed the crime of wilful murder of at least one of the deceased – all 97 were convicted of the seven counts of wilful murder under both s 7 (for aiding and assisting those who directly committed the offences) and s 8 (for committing offences while prosecuting an unlawful purpose) of the Criminal Code.	Death for 8 offenders who directly committed wilful murder – life imprisonment for other 89 offenders.

31. Comparing and contrasting the facts of this case with those summarised above, and taking account of mitigating and aggravating factors, I consider that the mitigating factors are sufficiently weighty to warrant a sentence below the starting point of life imprisonment. I fix a sentence of 30 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

32. This is a matter of discretion under Section 3(2) of the Criminal Justice (Sentences) Act. For Chris George Josh, account must be taken of the fact that he served an effective sentence of 12 months imprisonment for a summary offence after being arrested in May 2016. I fix a pre-sentence period in custody for him as two years, ten months. For Livai Solomon he has been in custody for a continuous period since June 2016 with no part of that period in custody being linked to any charge other than those on which he faced trial. His pre-sentence period in custody to be deducted is three years, nine months.

33. There is insufficient evidence to warrant suspension of any part of either sentence. The compensation that has been paid has been taken into account as a mitigating factor. There would need to be clear evidence of peace, reconciliation and/or forgiveness or a concrete plan before the Court, as between the offender’s relatives and the relatives of each deceased before the Court could seriously consider suspending any part of the sentences for these very serious offences. There has been no specific or direct process of reconciliation between the relatives of Chris George Josh and the relatives of Peter Muruai or between the relatives of Livai Solomon and the relatives of Matia Rabang. Therefore, no part of either sentence is suspended.

Chris George Josh and Livai Solomon, having each been convicted of one count of wilful murder under s 299(1) of the Criminal Code, are sentenced as follows:

Sentenced accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death

Details	Chris George Josh	Livai Solomon
Length of sentence imposed	30 years imprisonment	30 years imprisonment
Pre-sentence period in custody	2 years, 10 months	3 years, 9 months
Resultant length of sentence to be served	27 years, 2 months	26 years, 3 months
Amount of sentence suspended	Nil	Nil
Time to be served in custody	27 years, 2 months	26 years, 3 months
Place of custody	Beon Correctional Institution	Beon Correctional Institution

National Court of Papua New Guinea

State v Josh [2020] PGNC 61; N8258 (12 March 2020)