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State v Krofung (No. 2) [2021] PGNC 421; N9162 (9 July 2021)

N9162

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1259 OF 2016; CR 1691 OF 2016; CR 1260 OF 2016;
CR 1261 OF 2016; CR 1690 OF 2016; CR 1692 OF 2016.

THE STATE

V

SAMUEL KROFUNG; FERDINAND FANOK; SAUL SELIN; WALTER MONEA; MOSES MONEA; MESHACH MONEA
(NO. 2)

Wewak: Geita J
2021: 5^th,6^th, 9^th July

CRIMINAL LAW – Sentence after Trial – Wilful Murder – Mob attack on the victim causing a cut under his armpit – Mob attack on the victim as he lay wounded and helpless in the confines of his uncle’s house – multiple injuries- attack vicious -garden spade, bush knife and sticks used.
CRIMINAL LAW – Sentence - Wilful Murder – Section 299 (1) Criminal Code, Section 7 & 8 Criminal Code invoked. Sentenced to prison terms ranging from a high 30 years to a low 28 years, based on degree of involvement or participation – Advanced age considered.

CRIMINAL LAW – Sentence- Section 18 (2) Juveniles Court Act 1991 – Sentencing powers - Special mitigation circumstances considered.

Facts

The prisoners were found guilty on 19 and 20 November 2020, respectively. Their sentence delayed due to Defence Counsel inability to file or make submissions. Defence Counsel put on notice that should he fail to appear; the court will hand down its ruling on sentence.
One day prior to receiving submissions on sentence Counsel of defence Mr. Christopher Jaminan emailed his written submissions to my Associate and to Wewak Registry. Mr. Parihau from Public Solicitor’s Office was directed by Court to assist the prisoners as next friend, to which this Court is grateful.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Ignatius Pomaloh v The State (2006) SC834
John Kalabus 1988 PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
Luneme Neuso v. The State [1978] N139
Manu Kovi v The State [2005] PGSC 34; SC789
Paulus Mandatititip v. The State [1978] PNGLR 128
State v John Wanimba and 2 Ors CR Nos. 34, 35, 36 of 2004 - N2863
State v Kapas [ 2007] PNGNC 77; N3192
State v Sumai [2018] PGNC 504; N7622
The St v Isak Wapsi CR No. 1203 of 2008 Madang
The State v John Kanau Siune and Kenneth Kunda Siune [2006] N5014
The State v Kingsford Kari and Clive Dugumari CR No.449 and 450 of 2011
The State v Moses Dadu & Sylvester Dadu (2017) N6881
The State v Todd Mari Cr No. 1450 of 2009: N4306
The State v Tom Gurua, David Bawai & Nimagi [2002] N2312

Counsel:

Theresa Aihi, for the State.
Stanley Parihau, as next friend for the Prisoners.

JUDGMENT ON SENTENCE

9^th July, 2021

1. GEITA, J: The prisoners have been found guilty after trial on 19 November 2020. Samuel Krofung pleaded guilty on 20 November 2020. That they each and severally wilfully murdered Lazarus Nur on 30 April 2016 at Berian village, Kairuru Island. The offence comes under Section 299 (1) of the Criminal Code, Chapter Number 262 with ss 7 (1) (a) (c) and 8 (a) (b) Criminal Code also invoked.

2. The facts as found by this Court on their convictions following their trial commenced in 2019 and concluded in 2020 are these. That between 5.00 pm and 6.00 pm on 30 April 2016 the prisoners were drinking alcohol at Berian village on Kairuru Island when an argument started between them and the deceased Lazarus Nur. The argument became heated in which the prisoners assaulted Lazarus with all manner of weapons including canoe paddle and grass knife causing injuries to his head and under left arm. As Lazarus, now wounded ran to seek refuge at his uncle’s house, the prisoners pursued him, armed with stones, grass knife and sticks. The prisoners followed him into the confines of his uncle’s house and further assaulted him and took turns in kicking and hitting his body with sticks etc. They then fled after the assault leaving Lazarus lying in his own blood. Lazarus succumbed to his death as a result of the injuries to his body and head.

3. The prisoners recorded no prior convictions according to the Public Prosecutor. Their allocutus was administered with their responses as follows:

Pre-sentence Report

4. Summary of important information in their reports:

Complainant’s views.

5. The deceased’s family admit receipt of the “bel kol” monies together with foodstuff and the outboard motor and dinghy. They still maintain that a prison sentence would be appropriate as the “bel kol” payments were made very late after the death of the victim.

Aggravating factors

6. The circumstances of aggravation in relation to this offence are as follows: Dangerous weapons were used: spade, bush knife, sticks, a life has been lost, mob attack, presence of alcohol, prevalence, more than one injury inflicted on vulnerable parts of the body, attack vicious.

Mitigating factors

7. As to mitigation Samuel Krofung pleaded guilty, all are first time offenders, remorse. Compensation in cash and kind amounting to K27, 680.00 paid to the deceased’s family members on 30 January 2021, partial voluntary surrendering to the police, de facto provocation and old age for Moses Moneo, special mitigating considerations, youthful offenders, first time offenders.

Submissions on sentence- Defence

8. Mr Jaminan addressed each of the prisoner’s degree of participation in this fashion: Samuel Krofung pleaded guilty, did not consume alcohol, was not an active participant in this crime, was a juvenile at the time the crime was committed. He was convicted by operation of s.7 Criminal Code and his plea of guilty; Considering his early guilty plea and favourable mitigating factors, including juvenile age, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 10 years, less his pre-trial custody period is recommended. Ferdinand Fanok was found guilty after trial, he consumed alcohol, was part of the group that chased the deceased to Benjamin Pakaiwun’s house, he was part of the group of boys who assaulted the deceased. He was convicted by operation of s.7 Criminal Code. Considering his favourable mitigating factors, including the payment of compensation and the minimal role he played in this crime, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 14 years, less his pre-trial custody period is recommended. Saul Selin was found guilty after trial, he consumed alcohol, was part of the group that chased the deceased to Benjamin Pakaiwun’s house, he was part of the group of boys who assaulted the deceased in the house as he lay wounded. He was convicted by operation of s.7 Criminal Code. Considering his favourable mitigating factors, including the payment of compensation and the minimal role he played in this crime, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 14 years, less his pre-trial custody period to be considered. Walter Moneo was found guilty after trial, he consumed alcohol, was part of the group that chased the deceased to Benjamin Pakaiwun’s house but stopped short of assaulting the deceased as he stood outside and observed, he was a juvenile at the time the crime was committed. He was convicted by operation of s.7 Criminal Code. Considering his favourable mitigating factors, including the payment of compensation and the minimal role he played in this crime, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 10 years, less his pre-trial custody period is recommended. Moses Moneo was found guilty after trial. He incited the group of boys to assault the deceased as he lay wounded in his uncle’s house, He also assaulted the deceased. He was convicted by operation of s.7 Criminal Code. Considering his favourable mitigating factors, including the payment of compensation and the minimal role he played in this crime, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 10 years, less his pre-trial custody period is recommended, considering his advanced age of 58 years. Meshach Moneo was found guilty after trial, he consumed alcohol, was part of the group that chased the deceased to Benjamin Pakaiwun’s house and assaulted the deceased as he lay wounded inside his uncle’s house. He was convicted by operation of s.7 Criminal Code. Considering his favourable mitigating factors, including the payment of compensation and the minimal role he played in this crime, Counsel of defence submitted that the offence should fall under Category 1 of Manu Kovi sentencing tariff: (15-20 Years). A resultant head sentence of 14 years, less his pre-trial custody period is recommended.

9. Counsel of defence correctly submitted that this case must be determined on its own peculiar circumstances: (Lawrence Simbe v The State [1994] PNGLR 38.) Section 19 Criminal Code was also brought to the attention of this court. The Court was reminded that wilful murder does not automatically attract the death penalty or life imprisonment. I take judicial notice of case precedents referred to me, with sentencing ranges from a low 20 years to a high 40 years. The eleven cases referred to me were sorcery related.

10. Counsel Pariau for Jaminan submitted that prisoners Samuel Krofung, Saul Selin and Walter Moneo were juvenile at the time the crime was committed and ought to be sentenced under the sentencing provisions under the Juvenile Court Act. As regards prisoner Moses Monea who will be turning 59 years, Mr Pariau submitted that his overall sentence be halved due to his advanced age. He relied on the case of the State v Kapas [ 2007] PNGNC 77; N3192. (21 March 2007). The offender aged 60 years old pleaded guilty to persistent sexual abuse of a 10-year-old child. The maximum of 25 years reduced to half: 12 years due to his advanced age, medical condition and mitigation factors.

Submissions on sentence- Prosecution

11. Counsel of State Ms Theresa Aihi submitted that prisoner Samuel Krofung is liable to death sentence subject to s.19 of the Criminal Code. The case of The State v Isak Wapsi CR No. 1203 of 2008 was relied upon as comparative case. This was a guilty plea to the charge of wilful murder, use of a bush knife, attack vicious, no remorse, no compensation. A sentence of 25 years imposed with pre-sentence period in custody deducted. As for prisoner’s Saul Selin, Walter Moneo, Moses Moneo, Ferdinand Fanok and Meshack Moneo, a sentence of low 24 years to a high 30 years to be imposed. The following case precedents submitted in support of the recommended sentence. (The State v Moses Dadu and Sylvester Dadu CR No 1119 and 1120 of 2014: N6811; The State v Kingsford Kari and Clive Dugumari CR Nos 449 and 450 of 2011, Trial matter on wilful murder, victim assaulted and stabbed on the base of the neck penetrating the lungs causing massive loss of blood loss and death; Imprisonment term of 25 years was imposed and The State v John Kanua & One Other CR Nos 384 and 385 of 2003, N5014. A sentence of 25 years was imposed. As for prisoner Moses Moneo who was convicted by operation of s.7 (1) (b) and 8 of the Criminal Code, a sentence of 25 years was imposed: (The State v Todd Mari Cr No. 1450 of 2009: N4306.) This was a trial matter in which the Court found that although he did not directly kill the deceased, he led a group that attacked the deceased. He enabled and aided his brother to murder the deceased and formed a common intention with other members of the group to attack and kill certain persons.

12. Ms Aihi submitted that Samuel Krofung’s case falls in category 2 of Manu Kovi wilful murder sentencing guidelines; (20 – 30 years range) whereas the rest of the prisoners’ case fall in category 3 of Manu Kovi murder sentencing guidelines; (20 – 30 years). As to what should the appropriate head sentence should be, Ms Aihi submitted for a term of 25 years. Since the prisoners jointly committed the crime, each prisoner’s sentence must reflect his degree of involvement in the crime, she said: (Ignatius Pomaloh v The State (2006) SC 834. She conceded that the three (3) juvenile prisoners be sentenced under the provisions of s. 18 of the Juveniles Court Act 1991 as amended.

13. However, Counsel of State took issue with the Probation Officer’s recommendation for the prisoner’s suitability for probation, adding that a life was lost in vicious circumstances and a deterrence custodial term appropriate. As regards the payment of compensation Ms Aihi submitted that it should not be used to buy one’s way out of prison.

Application to the case

14. Both Counsel have correctly referred the Court to the applicable sentences available under the sentencing tariffs in the case of Manu Kovi. I will be guided by those tariffs. I also remind myself that that the maximum punishments are best left for the worst types of cases. (Goli Golu [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193. Although this act of killing was uncalled for and cowardly, I do not consider it to be of the worst category and will not apply that sanction. The sentencing tariffs in the case of Manu Kovi are reproduced here for ease of reference:

SCHEDULE

SENTENCING TARIFF FOR MURDER OFFENCES

15. As regards Mr Jaminan’s submissions that you all be sentenced under Category 1, Manu Kovi sentencing tariffs and with exception of Samuel Krofung, you all were found guilty of wilful murder by operation of s.7 of the Criminal Code. With respect this contention is somewhat misleading as s.8 and s.299 Criminal Code was invoked: wilful murder. The wilful murder attributes in your case falls squarely within Category 2 of Manu Kovi: sentence between 20 to 30 years and not Category 1. Lazarus died as a result of a vicious mob attack, weapons were used, with a strong desire to kill.

16. As regards the payments of compensation in cash and kind valued at K27,680.00, rather belatedly, I have accorded the prisoners with special mitigation factors in their favour.

17. The next consideration is should I sentence you equally or should I sentence you separately for the part you played in the commission of this crime? According to set principles developed in the case of Gimble v The State [1988-89] PNGLR 271 and The State v Tom Gurua, David Bawai & Nimagi [2002] N2312. The Supreme Court held that the general rule when sentencing all active participants in the crime to be sentenced on the same basis... All are equally guilty because without each playing his full part the crime could not be perpetrated. Another school of thought is that each prisoner to be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances.

18. In your case the variables are many and varied so to have you sentenced equally would not augur well in some of your sentences. As such I have adopted the general rule that your respective sentences will be dictated by your degree of participation or involvement in this crime. On their part both Saul Selin and Meshach Monea stood out to be the main perpetrators, Saul Selin wounded Lazarus with a spade; followed closely by Ferdinand Fanok, whose foul language ignited the fighting. Moses Monea, the oldest and leader amongst them aided and abetted the young men to assault Lazarus. He also took a lead role in assaulting the deceased. Walter Monea and Samuel Krofung’s part may be described as innocent young men finding themselves in the wrong company and at the wrong time.

19. The death of Lazarus was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the “worst types” wilful murder cases. He was one of their kind and no stranger. The present case was a gang offence which was hatched and carried out in their state of stupor under intoxicated alcohol. In the circumstances the gravity of the offence was such that it clearly called for a custodial sentence in the order of between 20 years to 30 years, using sentencing tariff category 2 in Manu Kovi v The State. [2005] PGSC 34; SC 789.

20. As regards the comparative cases referred to the Court, I take judicial notice of them. Notwithstanding their relevance in this case, I need not look further than the case of State v Sumai [2018] PGNC 504; N7622 (21 November 2018). This was a wilful murder case I conducted. The prisoner and his brothers chased and apprehended a mentally retarded man and beat him to death in front of his house. The five prisoners were sentence to a low 20 years to a high 40 years depending on their degree of involvement and participation. I will adopt and apply the sentencing ranges in this case as the facts are almost related to your case. The only consolation in your case was the payment of a sizable compensation of K27,680.00 in cash and kind, rather belatedly might I add which amount to special mitigation factor.

21. A marked difference in your case was that Lazarus was assaulted within the confines and safety of his uncle’s house. A house or home is supposed to be a place of rest, protection and commonly referred to as a safe haven. Your collective actions have clearly demonstrated to me that you had no regard for the sanctify of the home as a safe haven and the sanctify of a human life. To this end I will consider a starting head sentence of 40 years for all of you, with considerations for a lower or higher sentence on a sliding scale depending on your mitigations and degree of involvement.

22. As regards what type of sentence I should impose on the three (3) juvenile prisoners I have had the opportunity of consulting some earlier cases on this subject and noted what Courts have said in those cases. One of which is the case of Paulus Mandatititip v. The State [1978] PNGLR 128. In that case the court acknowledged that youth has always been one of the most effective mitigating factors especially in the case of the first offender, and this principle is basic and elementary. But where an offence is more serious and it is prevalent and it is invariably committed by young persons, then they may not receive special treatment unless there are exceptional circumstances which call for leniency. (Underlining mine). These three juvenile prisoners have been incarcerated for more than 5 years. (5 years 1 month, 2 weeks and 7 days at the time of writing). Under s.18 Juveniles Court Act 1991 as amended, where a juvenile is charged with homicide, rape or other offences punishable by death or imprisonment for life and subject to subsection (2) the trial shall be heard by the National Court. The Section then goes on to state that the National Court may exercise the sentencing powers conferred by the Act on a Juvenile Court. The maximum sentence under the section that can be imposed on a juvenile is 3 years imprisonment. However, the National Court may, in addition to any other powers under this Act or any other law when dealing with a juvenile for a life imprisonment offence with its sentencing powers under the Criminal Code.
23. In this case I am satisfied that the three (3) juvenile prisoners present exceptional circumstances, hence must receive special treatment and leniency: Notwithstanding the seriousness of the crime committed, I will accord them special treatment for the following reasons: special mitigation circumstances exist, one of them pleaded guilty and they have been incarcerated over and above the 3 years sentencing limit under the Juvenile Courts Act 1991 as amended. I do take note that a deterrence sentence may be justified for first time youthful offenders convicted of unprovoked gang assaults because of circumstances of aggravation and the need to achieve parity. (Luneme Neuso v. The State [1978] N 139)

24. As to the plight of prisoner Moses Moneo with old age concerns, I will accord him that leniency but within the parameters of his degree of involvement and participation. I am mindful that being the instigator and partaker of the assault he deserves to be sentenced to a longer prison sentence. I agree with my brother Cannings J when he said justice would not be dispensed with by subjecting a 61-year-old man to 25 years. I quote Cannings J “It would leave him little prospect but to die in prison as an old and ill man. I am therefore imposing a sentence of about half of what would otherwise be warranted. The sentence I impose is 12 years imprisonment.” (State v Kapas [ 2007] PNGNC 77; N3192.) Prisoner Moses Moneo is now 59 years. A sentence of 28 years will leave him with little prospect of getting out alive in prison. I adopt and apply the Kapas approach.

25. In your case your sentences will be determined on a scale of 0% - 100% depending on the extent of your involvement and or participation.

Sentence

26. I sentence you all individually in this manner:

Court Order:

27. In the event of any breach of the probation conditions by juvenile prisoners’ Saul Selin, Walter Monea and Samuel Krofung, you will be recalled and made to serve the whole of the primary sentence adjudged against each of you.

Orders accordingly.

Public Prosecutor: Lawyers for the State
Jaminan & Associates Lawyers: Lawyers for the Prisoners