N9326

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 654 - 658 OF 2018

THE STATE
v

ABRAHAM ELIUDA
RUPAS KAORE
SIMON KAORE
JACK MISILI
JUNIOR MISILI

Kimbe:  Numapo J
2021:	25th November

CRIMINAL LAW – Sentencing – Wilful Murder – s. 299 (1) Criminal Code – Degree of culpability – Aggravating and mitigating factors – Prevalence of offence - Sentencing discretion s 19 Criminal Code – Manu Kovi Guidelines. 

Held: 

(i)	The appropriate sentence for a vicious mob attack using offensive and dangerous weapons with a strong desire to do grievous bodily harm (GBH) is between 20 to 30 years imprisonment.

(ii)	Sentencing guidelines merely serve as a guide and does not take away the unfettered sentencing discretion of the Court. 

(iii)	Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution. 

(iv)	Where more than one person is involved, sentence imposed on each must reflect their degree of participation and levels of criminal culpability. 

(v)	Factors such as the gravity of the offence, extenuating circumstances,        aggravating and mitigating factors, including prevalence of the particular offence are taken into account in deciding the appropriate sentence.

(vi)	Prisoners sentenced to terms of imprisonment ranging from 20 to 25 years less the pre-trial custody period.

(vii) Order for compensation. 

Cases Cited: 

Manu Kovi v The State (2005) SC789 
Goli Golu v The State [1979] PNGLR 653 
Kumbamong v The State [2008] PGSC 51; SC1017 
Lawrence Simbe v The State (1994) PNGLR 38 
Ure Hane v The State [1984] PNGLR 105 
Avia Aihi v The State (No 3) [1982] PNGLR 92.   
Steven Loke Ume & Ors v The State (2006) SCA 836 
Mako Ranjigi v The State [1994] PNGLR 44 
State v Raphael (No 2) [2006] PGNC; N218
State v Kutau (No 2) [2002] PGNC 89; N2249 
State v Ivanga Levi & Ors (2015) N7585 
State v Sakarias Givikain & Ors (2019) N8074 
State v Solomon Jack Goimas (2015) N7485 
State v Kivini (2004) N2576  
State v Manga [2017] PGNC 285; N6998
Willy Kelly Goya v The State [1987] PNGLR 51
State v Silingo Abitena & Ors (2017) N7290; 
State v Joshua Sagalol & Ors (2018) N73531; 
State v Keroi Gurua & Ors [2002] PGNC 41; N2312
State v Mal & Ors [2012] PGNC 19; N4591. 

Counsel:

E. Kave & A. Bray, for the State
D. Kari, for the Defence

SENTENCE

25th November, 2021

1.      NUMAPO J: This is a decision on sentence.  The prisoners each and severally were found guilty on one count of Wilful Murder pursuant to section 299 (1) of the Criminal Code after a trial.

A.	BRIEF FACTS

2.     The facts were that; on the 13th of January 2018 at Galeoale village, Hoskins West New Britain Province, a “custom ceremony” was held at one, Zachery Gelu’s residence.  People from within Galeoale village and other surrounding villages came and performed their traditional dances or singsing and there were a lot of people around at the time.

3.     At around 2:00pm the prisoners attacked the singsing groups with axes, knives, stones and sticks. The deceased, Augustine Pola was also present at the time when the prisoners carried out the attack. Deceased was attacked when he tried to run away. A person by the name of Mare Ga’a speared him on his leg with a fishing spear that caused the deceased to stumble when the prisoner Rupas Kaore ran from behind and stabbed him with a knife on the right side of his stomach, spilling the guts out as the knife was pulled out. Prisoner Abraham Eliuda then used an axe and cut the deceased on his right shoulder and struck him on his head as well. Around the same time prisoner Simon Kaore picked up a stone and hit the deceased on his head whilst he was lying on the ground. Prisoners Jack Misili and Junior Misili joined in and threw stones and sticks at the deceased as he was lying on the ground. The deceased was rushed to the hospital but died along the way. 

B.	THE LAW

4.     The maximum penalty prescribed for wilful murder under section 299 is death.

Section 299. WILFUL MURDER

(1)	 Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	 A person who commits wilful murder shall be liable to be sentenced to death. 

C.	ISSUE ON SENTENCING 

5.     In sentencing there is only one issue and that is that; what would be the appropriate sentence to impose?

D.	PRINCIPLES ON SENTENCING

6.     There is no mathematical formula in sentencing and very much depends on a number of factors and considerations that are taken into account in deciding the appropriate sentence. Prominent of all, is the aggravating and the mitigating factors and circumstances of the particular offence. Current sentencing trend of a particular offence is also a consideration to ensure consistency, uniformity and parity in sentencing so that like cases are treated alike. Case laws and sentencing tariffs provide useful guides as well in sentencing.  

7.     The common law principles on sentencing provided some guidance in achieving certain specific outcomes, purpose or objective in sentencing such as deterrence, rehabilitation, restitution and retribution. The Courts over the years were being guided by these principles in imposing sentences that aims to achieve the desired outcome both for the offender, the victim and the society at large. In general, any sentence imposed by the court must be appropriate, just and fair and one that fits the crime. The sentence must also reflect the views of the society at large such as for example, the society’s attitude towards a particular type of offending and their expectations on the type of punishment to be imposed. Prevalence of the offence is also taken into consideration.

8.    Counsel for the State Ms Elizabeth Kave and counsel representing the prisoners, Mr Doko Kari submitted that in deciding the appropriate sentence the court should consider the tariffs for wilful murder cases outlined in the Supreme Court decision of Manu Kovi v The State (2005) SC 789 (commonly known as the Manu Kovi Guidelines) which is set out below: 

CATEGORY	WILFUL MURDER	
Category 1 	15 – 20 years	
Plea
Ordinary cases
Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning
Minimum force used
Absence of strong intent to do GBH.	
Category 2	20 – 30 years	
Trial or Plea
Mitigating factors with aggravating factors	Pre-planned. Vicious attack
Weapons used
Strong desire to kill	
Category 3	Life Imprisonment	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack
Strong desire to do GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences of violence committed.	
Category 4 	Death	
Worst Case – Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack
Brutal killing, in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human life.	
 
E.	AGGRAVTING & MITIGATING FACTORS

(i)	Aggravating factors

•	It was a mob attack
•	Dangerous weapons such as knives, axe, stones and sticks were used in the attack
•	Vicious attack
•	Attack was pre-planned
•	Strong desire to kill
•	Prevalence of such offences especially in the West New Britain Province
•	No effort made on reconciliation 

(ii)	 Mitigating factors

•	First time offenders
•	No record of prior convictions
•	Expressed remorse
•	Some compensation was paid as “bel kol” money.

F.	PRE-SENTENCE REPORT & ALLOCUTUS

9.    The prisoners ages ranges from 25 to 59. They all come from Galeoale village. The deceased is also from the same village. Most of them are married with families and have oil palm blocks and sustained their livelihood by selling the fruits. 

10.     In their allocutus, they told the court they are very sorry for what they did and apologized for their actions. They expressed remorse as the deceased is one of their own as they all come from Galeoale village, Hoskins. They have paid some compensation to the relatives of the deceased as “bel kol” money and intends to pay further compensation if the court orders them to do so. They asked the court to consider giving them probation. They are all first-time offenders. 

G.	DEFENCE SUBMISSION ON SENTENCE

11.     Defence submitted that this is not a worst type offence under the Manu Kovi Guidelines to attract a maximum penalty prescribed by law and urged the court to adopt the approach taken in Goli Golu v The State (1979) PNGLR 653, that maximum penalty should be reserved for the most serious instances of the offence. 

12.     Mr Kari submitted that Manu Kovi is only a guide and the court has a wider sentencing discretion under section 19 of the Criminal Code to consider a lesser penalty then the maximum prescribed by law. The court is not bound by the sentencing tariffs fixed and its discretion on sentence remains unfettered as was held in Kumbamong v The State [2008] PGSC 51; SC1017 where the Supreme Court said:

“To the extent that these two decisions further categorize and prescribe minimum and maximum sentences within the already prescribed maximum sentences, we are of the respectful view that, they are an unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge. We are thus of the view that, no trial judge should feel compelled or bound to follow these prescriptions. Instead, they should exercise the wide discretion vested in them in the way they see fit as long as they take into account all of the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the particular circumstances in which the offence under consideration was committed.”

13.     Counsel further submitted that the appropriate penalty to be imposed should be based on the case’s own facts and merits and referred to a decision on point by the Supreme Court in Lawrence Simbe v The State (1994) PNGLR 38 at p. 40:

“We say that it is not the matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands.”

14.     Counsel further submitted that the present case falls under category 2 of Manu Kovi guidelines where the Supreme Court suggested between 20 – 30 years for wilful murder committed under such circumstances.

H.	STATE SUBMISSION ON SENTENCE

15.     Ms Kave agreed with the defence that the maximum penalty should be reserved for worst type offence. Number of case laws have established this principle on sentencing in cases such as in; Goli Golu (supra), Ure Hane v The State [1984] PNGLR 105 and Avia Aihi v The State (No 3) [1982] PNGLR 92.  

16.     For homicide cases, the Supreme Court in Steven Loke Ume & Ors v The State (2006) SCA 836 held that:

“…the punishment for wilful murder must be considered in the same way punishment for other murder offences or any other criminal offences for that matter, is considered. The sentencing principles in homicide matters are settled. In exercise of its sentencing discretion, the court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The court must then balance these factors and determine the punishment which fits the particular crime.” 

I.	COMPARATIVE CASE LAWS

17.     Counsel cited some case precedence on sentences in wilful murder cases and ask the court to consider it for purposes of consistency and uniformity in sentencing. There are other case laws as well that I have included for comparative purposes below: 

(i)	     In Mako Ranjigi v The State [1994] PNGLR 44, the appellant was with a group of men who attacked the killed a villager in a payback incident. The Supreme Court affirmed the sentence of 25 years by the National Court. 

(ii)	     In State v Raphael (No 2) [2006] PGNC; N218; the prisoner speared the decesaed two times then used a knife to cut him on his head fracturing his skull following a land dispute. The court considered the attack to be vicious and sentenced the prisoner to 35 years.

(iii)	In State v Kutau (No 2) [2002] PG NC 89; N2249; the prisoners were father and son. They had an argument with the deceased previously but had reconciled with him. The son however, refused to make peace and attacked the decesaed with a knife to which the father joined in and took part in the attack that eventually led to the death of the deceased. Both were sentenced to 40 years in hard labour.

(iv)	In State v Ivanga Levi & Ors (2015) N7585; the prisoners were each and severally found guilty and convicted for wilful murder. It was a mob attack. The decesaed was ambushed, tortured and killed. The mitigating factors were rendered completely insignificant by the gravity of the offence. It was a vicious attack on an unsuspecting victim with a strong desire to kill. The level of viciousness is evidenced by the horrific wounds suffered by the victim. The attack was pre-planned and well executed. The prisoners showed no mercy and have no regard of a human life. They were sentenced to 30 years in hard labour less the pre-trial custody period.

(v)	     In State v Sakarias Givikain & Ors (2019) N8074; the prisoners each and severally were convicted on two counts of wilful murder. The prisoners armed themselves with bushknives, axes, fishing spears, sticks and stones and ambushed and killed two persons suspecting them to be rascals (criminals).  They then chopped off their heads and cut up their bodies and threw them into the river. The State described this as a heinous crime of the worst kind and asked the Court to impose the death penalty on each of the prisoners. Defence agreed however, submitted that the Court should exercise its discretion under section 19 of the Code and impose a lesser sentence with a determinate term of imprisonment on both counts instead of a death penalty or life imprisonment.  The prisoners were each and severally sentenced to life imprisonment.

(vi)	In State v Solomon Jack Goimas (2015) N7485; the prisoner was sentenced to 26 years for killing an old man he suspected of making sorcery. 

(vii)	The State v Kivini (2004) N2576; the prisoner chopped off his sister neck because he was upset that no one looked after him when he was sick. He was sentenced to life imprisonment.

(viii)	In State v Manga [2017] PGNC 285; N6998; the offender was convicted after a trial on one count of wilful murder. The offender stabbed the deceased in a clubhouse. He was sentenced to 24 years.

18.     The case laws cited above showed a sentencing trend on wilful murder cases ranging from 20 years to life imprisonment.

19.      On the appropriate sentence, Ms Kave submitted that although this case does not fall into worst type category of wilful murder cases, the facts suggested that it is near to the worst type as this was a vicious mob attack on a defenseless individual. He was chased, ambushed, tortured and killed. The multiple injuries suffered by the deceased suggested that the attack was brutal. The fact that he was continuously attacked even after he was lying unconscious on the ground showed that the prisoners had intended to kill him and the attack was deliberate to end his life. 

20.     State submitted for a sentence of between 25 years to life imprisonment to be imposed on the prisoners as an appropriate penalty for this case, taking into account all the relevant factors and considerations.

J.	APPROPRIATE SENTENCE

21.     In determining an appropriate sentence there are number of factors and considerations the court must take into account such as; the gravity of the offence, the circumstances under which it was committed, the manner in which the attack was carried out, use of dangerous and offensive weapons, vicious nature of the attack, mob attack, pre-planned and pre-meditated killing etc. 

22.     To impose the maximum penalty of death under section 299 (1) and (2) of the Criminal Code, the starting point would be that the aggravating factors and circumstances must have rendered the mitigating factors so completely insignificant that the court is left with no alternative but to impose the maximum penalty prescribed by law. This is in addition, of course, to other considerations in sentencing that the court is also required to take into account.  However, the imposition of the maximum penalty is by no means automatic or mandatory even if the aggravating factors outweighs the mitigating factors given that the unfettered sentencing discretion of the court under section 19 is still open to the court. To attract a maximum penalty, the Supreme Court in Ure Hane (supra) sets out five instances that death penalty might be considered:

(i)	     Any murder done in furtherance of theft,

(ii)	     Any murder by shooting or causing an explosive,

(iii)	Any murder done in the course of or for purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody,

(iv)	Any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting, and

(v)	     In the case of a person who was a prisoner at the time when he did or was a party to a murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prisoner so acting.

23.    In the case of Steven Loke Ume and Others –v- The State (2006) SCA 836, the Supreme Court further outlined seven instances which guaranteed the maximum penalty:

1.	The killing of a child, younger or old person, or a person under some disability needing protection.

2.	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policemen, correctional officer, government officer, school teacher, church worker, company director or manager.

3.	Killing of a leader in government or the community, for political reasons.

4.	Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

5.	Hire to kill or contract killing.

6.	Killing of two or more persons in a single act or series of acts.

7.	Offence is committed by a prisoner in detention or custody serving sentence for another serious offense of violence.

8.	The prisoner has prior conviction(s) for murder offences.

24.     The above instances are not exhaustive and individual cases are determined on its merits for purposes of sentencing. 

25.     The right to life is a fundamental right of every individual under section 35 of the constitution. No one has any right to take away the life of another person. The sanctity of life regards human life as very precious. It does not only refer to the value of its biological existence but also to a spiritual and ethical virtues of a physical and spiritual existence. Life in its fullness is holy and scared, inviolability and a creation of God after His likeness. This is what the Christians believed in and held onto dearly. Given that, any consideration for sentence in wilful murder cases must start with a maximum penalty prescribed by law, which is death.  The court would then work its way downwards in the exercise of its discretion to consider a lesser penalty where necessary, taking into account all the relevant factors and particular circumstances under which the offence was committed.

26.     The deceased was 28 years old, young and single. He had a whole life ahead of him but was tragically cut short. The prisoners are all related to the deceased in one or another as they all come from the same village of Galeoale. In effect, they have killed one of their own which is very unusual given the extended family network we have in this country. 

27.    I have taken into considerations the aggravating factors and circumstances and find that it far outweighs the mitigating factors. This was a vicious mob attack on an unsuspecting and defenseless victim. This was a pay-back killing and I have no doubt it was pre-planned. The prisoners had some grudges against the deceased for burning down a house belonging to one of their relatives a few years ago. He was charged for arson but was acquitted for lack of evidence. This did not go down too well with the prisoners and they planned to retaliate and attack the deceased. The opportunity came when prisoners attended a ‘custom ceremony’ and saw the deceased there. They then carried out the attack. 

K.	DEGREE OF CRIMINAL CULPABILITY

28.     Where more than one offender is involved their degree of participation is important in sentencing. This is premised on the notion that no one should be punished for something he did not do or play any role in. The punishment should be proportionate to the role the offender played in the commission of the offence. For example; a watchman who is some distance away from the scene of the crime cannot be said to be the one who delivered the fatal blow that killed the deceased. The question relates to the levels of criminal culpability especially where more than one offender is involved. The degree and the extent of each of the prisoners’ participation and the role they each played be it minor or major, direct or indirect are matters for consideration in deciding criminal culpability. The proposition that the lesser role one plays the lesser sentence he can expect has found support from a number of case laws such as; Willy Kelly Goya v The State [1987] PNGLR 51; State v Silingo Abitena & Ors (2017) N7290; State v Joshua Sagalol & Ors (2018) N73531; State v Keroi Gurua & Ors [2002] PGNC 41; N2312 and State v Mal & Ors [2012] PGNC 19; N4591. 

29.     Our criminal justice system is based on a two-step process that is distinct and from each other. Firstly, at the verdict stage, sections 7 and 8 of the Criminal Code applies when invoked and refers to co-offenders as principal offenders as each of them would be deemed to have taken part in committing the offence with a common purpose, irrespective of what role or part each played. Once a guilty verdict is returned, sections 7 and 8 are no longer relevant for purposes of sentencing which is the second-step process. Degree of criminal culpability is determined at the sentencing stage when Counsels address the court on sentence. 

30.     According to evidence, the prisoners each played different roles in carrying out the attack on the deceased. Rupas Kaore was the first person that attacked and stabbed the deceased on his stomach and twisted the knife and pulled it out spilling the guts out. Abraham Eliuda was the second person that cut the deceased with an axe four times on the deceased’s right shoulder and back. He then hit the deceased on the head with the blunt edge of the axe when the deceased was lying on the ground. At that stage the deceased was already unconscious and lying on the ground motionless. Simon Kaore then hit the deceased on the head with a stone whilst he was lying on the ground. Jack Misili and Junior Misili joined in and threw stones and sticks at the deceased who by then was already half dead. It would seem therefore, that prisoners Rupas Kaore and Abraham Eliuda delivered the fatal blows that killed the decesaed. The other prisoners joined in later on and finished the job. The deceased was still breathing but succumbed to his injuries and died on the way to the hospital.    

31.     According to the post mortem report, the medical cause of death was multiple penetrating wounds to the body and severe head injuries. The findings is consistent with the evidence given by the prosecution. 

32.     Based on what has been said so far, and taking into account all the relevant considerations, I am of the view that this case falls under category 2 of the Manu Kovi guidelines hence, an imprisonment term of between 20 – 30 years is appropriate in this case. 

33.     The other important consideration is the prevalence of the offence. Homicide cases have increased in recent years here in the West New Britain Province. The traditional disputes resolution mechanism is fast dying out. People are resorting more quickly to violence these days rather than resolving their differences through peaceful means. The court must show its disapproval of such behaviour by imposing a sentence that would serve as a deterrent not only to the offender himself but also to other would-be offenders that they can expect the same if they commit any offence. Revenge or payback killing in all its forms is unlawful and has no place in our modern society. Perpetrators can expect long-term sentences.

H. DECISION ON SENTENCING 

1.	Sentences for Prisoners Rupas Kaore and Abraham Eliuda 

(i)	     I sentence Rupas Kaore and Abraham Eliuda to Twenty-five (25) years imprisonment with hard labour. 

(ii)	     Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986, I deduct three (3) years and nine (9) months for the pre-trial custody period.

(iii)	Prisoners to serve the balance of Twenty-one (21) years and Three (3) months in hard labour.

2.	Sentences for Prisoners Simon Kaore, Jack Misili and Junior Misili

(i)	     I sentence Simon Kaore, Jack Misili and Junior Misili to Twenty (20) years imprisonment with hard labour. 

(ii)	     Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986, I deduct three (3) years and nine months (9) months for the pre-trial custody period. 

(iii)	Prisoners to serve the balance of Sixteen (16) years and Three (3) months in hard labour.

3.	Compensation Payment 

34.     I note from the Pre-Sentence Report (PSR) that some compensation has already been paid to the relatives of the deceased according to custom and prisoners have expressed their intentions to pay further compensation if ordered by the court. 

35.     Pursuant sections 2 and 5 of the Criminal Law (Compensation) Act 1991, 
I make the following Orders with respect to compensation as follows:
 
(i)	      Each prisoner is to pay a sum of K2000 cash with one (1) live pig each valued at not less than K1000, and one (1) Tuhali shell, as compensation to the relatives of the deceased according to the customs of the Nakanai people in the West New Britain Province within three (3) months of this Order. A total of K10, 000 cash, 5 live pigs and 5 Tuhali shells shall be paid to the relatives of the deceased under the supervision of the Probation Officer and the Police.

(ii)	     Upon payment of full compensation, Five (5) years of the total imprisonment term will be deducted leaving the balance as follows: 

•	Rupas Kaore and Abraham Eliuda will serve a balance term of Fifteen (15) years and Three (3) months IHL and;

•	Simon Kaore, Jack Misili and Junior Misili will serve a balance term of Ten (10) years and Three (3) moths IHL.

(iii)	No suspended sentence will be given on the balance of the term of imprisonment.

Orders Accordingly
__________________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor	:	Lawyer for the Prisoners