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State v Baga [2022] PGNC 345; N9771 (23 June 2022)

N9771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. (JJ) 32 OF 2019

THE STATE

V

SHEDRICK BAGA

Wewak: Miviri J
2022: 07^th & 23^rd June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – from Multiple Bush knife Cuts – intent to kill –Protection of Life – Sanctity of Life Section 35 right to Life Constitution – Prevalent Offence – Youthful Offender – Favourable PSR MAR – 20 Years IHL

Facts
One of the Accused’s accomplices called out kill him at the sight of the deceased. Accused with the three accomplices chased the deceased all armed with bush knifes each intending to kill the deceased. They attacked and all repeatedly cut him with the bush knives killing him.

Held
Protection of Life
Section 35 Right to Life
Prevalent Offence
Punitive Deterrent sentence
Youthful first offender
Leniency
20 years IHL

Cases Cited:
Robert Toivat v The State [26 October 2021] SCREV 71 of 2020.
Public Prosecutor v Hale [1998] PGSC 26; SC564
Nimagi v State [2004] PGSC 31; SC741
Aubuku v The State [1987] PNGLR 267
Kwapena v The State [1978] PNGLR 316
Kumbamong v State [2008] PGSC 51; SC1017
Kovi v The State [2005] PGSC 34; SC789
State v Malala [2018] PGNC 310; N7414
Tardrew, Public Prosecutor [1986] PNGLR 91
Ume v The State [2006] PGSC 9; SC836
State v Hagei [2005] PGNC 60; N2913

Counsel:

F.K, Popeu for the State
A. Kana, for defence

SENTENCE

23^nd June, 2022

1. MIVIRI J: This is the sentence of Shedrick Baga of Yobamuno, Yangoru, East Sepik Province who intended to and killed another by cutting him repeatedly with a bush knife all over the body in the company of three others who also assisted causing massive blood loss from which he died.
   
2. The facts on arraignment and on trial were, that on the 02^nd March 2018 between 3.00pm and 4.00pm Ezekiel Samson now deceased was at Yobamuno village. He was unhappy with the Accused Shedrick Baga’s father who was the ward Councillor of that area. In that capacity he had informed the Police about an unlicenced firearm Deceased had in his home. Because the police had raided his house and taken the gun and K2000.00 in cash, the deceased was frustrated and approached the Accused father whilst in possession of a bush knife and confronted him about it. And at that time the accused and his small brother and another relative were also present and an uncle of the Accused named Joe Baga called out to the boys to chase the deceased out and to kill him. The Accused and two of his relatives responded taking their bush knives and attacked the deceased cutting him. He tried to escape by running into a nearby Cocoa Garden but was followed by the Accused and two cousins who chopped him in the leg causing him to fall down and then they finished him off, by cutting him on various parts of his body with the bush knives. Members of the Public came and took him to the Naxei Health Centre in Yangoru but he was pronounced dead on arrival. A medical report on him showed that he had died from loss of blood due to the multiple bush knife wounds. The State alleged that this was caused by the Accused and his three relatives, and they intended to kill him when they attacked him in this manner.
   
3. In the Judgment on verdict, it was clear by the application of section 63 of the Evidence Act and the prisoner’s own assertion on oath that he was 22 years old in August 2022. Therefore, working backwards by three years to the time of the offence 2^nd March 2018, the Prisoner would have been 18 years old and therefore would qualify as a Juvenile. And in this regard for the purposes of an appropriate sentence, I take due account of section 4 (3) (f) of the Juvenile Justice Act 2014 in making this assessment. Mindful of section 5 objectives of that Act, including other relevant sections, and Part III diversion now that he has been found guilty whether there is material by the Presentence report as well as the Means Assessment Reports that affirm that in his case diversion is in order based.
   
4. Both the presentence and the means assessment reports have been filed dated the 22^nd June 2022. Matter has been formally adjourned for submission by the parties to today Thursday 23^rd June 2022 at 9.30am. That has happened from both sides of the matter. I take due consideration of the submission both for and against including the particulars relevantly in both the presentence as well as the means assessment reports. The presentence report states prisoner is married to a woman from a nearby village. And he has a toddler aged 1 year eleven months old from that union who are resident with his parents in the village. Whilst he attends the Bishop Leo Arkfeld Secondary School Wewak. For that reason, he is resident at Kaindi with his elder brother. Originally, he is from Yobomunuh village, West Yangoru East Sepik Province. He is from a family of six siblings, he being the fifth born. All other siblings have grown up and married with their own families. He lives with his parents in the village.
   
5. The Bishop Leo Arkfeld Secondary School Wewak confirms by reference dated 17^th June 2022, that he is a student at that school by its deputy principal Bruce Magiar. And that he is in grade 12B taking minor science, language, General Maths, Biology chemistry and applied natural resources management. He is a good student, quiet and well groomed. He is respectful to his teachers but will miss out in the exams in August and October 2022. The school asks for the consideration of this matter in the sentence passed.
   
6. The second reference is from a letter undated addressed to the Public Solicitor confirming the payment of compensation that is signed by 7 leaders and councillors within the immediate area where the prisoner is resident affirming that K13, 000.00 has been paid as part of the demand for K 25, 000.00 compensation. That a further payment of K12, 000.00 will be made in March 2019 in settlement of that sum now agreed. There is no confirmation that this has happened settling all. Photographs numbering three evidence firstly a bucket with cash and traditional shell ring money in payment. This is the K13, 000.00 that was paid. It is a relevant factor in the consideration of an appropriate term for the crime. Its payment does not extinguish the dictate of the legislature which I set out in full below.
   
7. His parents voice naturally that he is a child whose upbringing is good. He is helpful to the parents in and around the house. He will be accorded what is there upon the passing of the father. Because he is close to them helping them when the other children have grown up and left. He has no employment history and is a student at secondary school which is now by his conduct jeopardized and forfeited. He does not demonstrate that the payment of compensation stemmed from his pocket. That is not the case here, there is no evidence of his payment as the perpetrator. His family paid for his wrong. They are innocent of the matter but were forced to pay for his wrong. He has land that his father has given him to support his new family. He is therefore a young father with a wife and child to care for. He does not take alcoholic beverages and is a member of the Assembly of God church and is also the captain of is local soccer team. And confirming is antecedent report he is a first offender.
   
8. The presentence report recommends that he is a suitable candidate for probation but that is by section 16 of that Act for five years. That is not compatible with facts of the case and his given circumstances over the life of the deceased by reference to section 35 of the Constitution. The compensation is a form of the settlement of peace within the community where the offender and the deceased are from. But the discretion of the court is not taken away by that fact. It is one of the facts that will be duly weighed to come up with the total due the prisoner. The means assessment report is not concrete on the basis of which further compensation can derive from. Even then the Criminal Law compensation Act 1991 section 3, factors to be considered in making compensation orders, this is the most serious offence of the homicide offences. There is a will to kill and that will was given effect to by the prisoner. It is therefore not just the degree of the payment, but his role in its result. He was leading in the assault upon and cutting of the deceased with a bush knife. It is a very aggravated case of wilful murder and leaves nothing to mitigate compared. And regard to custom will not alleviate the dictate of section 35 of the Constitution reinforced by the Criminal Code. Bearing in mind section 5 of the Criminal Law Compensation Act the compensation shall not exceed K5000.00 be it in cash or kind. So for all intent and purposes further compensation is not in order.
   
9. In this regard it is my view considering the presentence report relevant and material particulars I set out above and the means assessment report, I am not convinced that this is a case where diversion will serve the Justice of this case. In particular that the sentence will not be proportionate to the gravity of the offence. Diversion will be out of proportion in view of the fact that a life has been brutally extinguished at the behest of the prisoner leading the others. He is not set apart by any facts of circumstances that convince that diversion is proportionate considering. The means assessment report does not confirm that he was paying out of his pocket individually for his wrong. There is no evidence to this effect. The weight due is not as great considering and it does not equate that life is basic and sacred by section 35 of the Constitution. All men are subject to the law, no man is law unto themselves.
   
10. And Juvenile Justice Act section 76 Purpose and Principles of sentencing in my view does not override the Constitution as the supreme law section 11. The Juvenile Justice Act is an Act of Parliament that does not override the dictate of the Constitution. The protection of life by section 35 is a basic human right to all persons. The protection of life, its sanctity and sacredness is not secondary to the Juvenile Justice Act. The deceased is no less a human than the juvenile. Life is lived only once. The deceased was 21 years old severely cut up all over his body by the Prisoner who led the other two relatives. This is the most serious offence of violence evidenced by the cuts to the body of the deceased by the photographs, there are three which I describe in the Judgement on verdict. Their gravity outweighs any consideration set out by the Juvenile Justice Act. There is no professional report either by a mental health specialist or otherwise. The overall theme of the material that is before me for the purpose of the consideration under the Juvenile Justice Act sections 77, 78, 79, and 80 are not there. The aggregate weight is not there to undermine section 35 the Right to life of the Constitution. It would not be proportionate to the gravity of the offence evidenced. This is not a case likened to Robert Toivat v The State [26 October 2021] SCREV 71 of 2020.
    
11. The call of the legislature section 299 (1) of the Criminal Code Act reading:
    
    • (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.
      

A person who commits wilful murder shall be liable to be sentenced to life imprisonment without parole. [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]

12. The evidence is very clear that the prisoner is responsible for cutting the deceased three times in retaliation for deceased cutting him with the bush knife on the neck, wrist and back. That is a relevant factor but the sentence will come out on the totality of the prisoner’s action with that compounded admission he makes.
    
13. Therefore, at the outset it was not disputed that the deceased had died. He had died an unnatural death. His death was as a result of multiple bush knife cuts to various parts of his body. And his death was immediately after the attack by the Prisoner. And this was evident by the medical report that was tendered Exhibit P2. This medical report was from the East Sepik Provincial Health Authority Director of Curative Health Services that an examination was made of the body identified by Police and relatives as that of Ezekiel Samson. At the time of the examination, it was thirteen (13) days after death. The cause of death was as a result of Multiple Bush Knife Wounds. And the time of death was set out as 2^nd Day of March 2018. The cause was severe Blood loss.
    
14. In the summary of significant abnormal finding at examination external he was a male of 21 years old. There was massive multiple bush knife wounds noted over different parts of the body. And it was listed:
    
    1. Right thumb cut off,
    2. Left thumb cut off,
    3. 12cm long deep cut to left buttock and left thigh, proximally,
    4. Left leg cut off at the proximal end,
    5. Left arm cut off at the mid shaft end,
    6. 11cm long deep wounds noted on right thigh and right iliac crest area both at the anterolateral region of the right thigh.
    7. Right leg cut off at distal 1/3 end.

Right perital scalp area haematoma.
Internal : All the bush knife wounds were severe involving muscle, blood vessels and respective bones.
Conclusion: Death Resulted from Severe loss of Blood.
It was signed at the East Sepik Provincial Health Authority dated the 15^th Day of March 2018 by Doctor Jimmy Kambo Government Medical Officer.”

15. Exhibit P4(a) is the photograph of the deceased face in his death. Exhibit P4(b) is the left-hand wrist showing the gruesome cut of all the fingers. Exhibit P4(c) showed two very open and gapping wounds on the left thigh of the deceased looking from the back as he was supine. It was evidently life threatening and indeed from which there would have been massive bleeding. And would have without proper professional medical treatment seriously led to loss of life. The deceased no doubt succumbed it was a wound that in my view left very little chance of getting back one’s life. And that is evidenced by the death of the deceased on arrival at Naxei Health Centre.
    
16. Jessica Samson sister of the deceased saw the big brother cut up by the Prisoner accompanied by the three others. It was a mob attack that did not leave the deceased any chance of survival. And he was chased and set upon eventually finishing him off. The other persons are not before the court, but the prisoner will be sentenced in his role in the demise of the deceased. The overall view is that She was a pupil in primary school and witnessed the horrific and gruesome death of her first-born brother. Those memories will linger in her for the rest of her life. It is not a pleasant sight to see one’s own blood cut up in that manner, helpless pleading for help at the hands of the prisoner and three others.
    
17. Section 35 of the Constitution of the nation bestows upon every soul the right to life as basic and cannot be deprived without due process of law. It means life is sacred and sanctified. It is lived only once in its fullest. It is by the fact of our Christianity as followers of Christ by our Constitution sourced from God who is alfa and Omega. Therefore, no men let alone the prisoner has rights to terminate or extinguish the life of another fellow human being as was the case here. He will serve his dues for that crime against the State and return to his life amongst his family. But for the deceased Ezekiel Samson he has gone never to return to his family. He may have been what he was, but that was no cause, nor rights, or licence to terminate given the prisoner. The family will have that member taken from them and remain for eternity. It is no comfort to live everyday with this for them. It will be a suffering they will endure, especially the witness small sister Jessica Samson.
    
18. Violent crimes are now forever sourced authored by individuals who the law has seen to camouflage, meek as youth, timid and helpless, wolf in sheepskin, 18-year-olds, but the gruesome books of crime written by their hands have devastated families, communities, Province, and the State, “We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence. Gimble’s case suggests starting with 7 years but the trial judge started even lower than that. We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years,” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). That in my view falls applicable on all fours to the present facts and circumstances.
    
19. It is a violent crime that has been committed by supposedly a Juvenile. That classification forgets the realities of life and is in the abstract of some textbook rhetoric, or fantasy given the seriousness of the facts here. It defeats hands down the theme of being an innocent tender juvenile. This is not a game but the reality that the Courts are faced with day in day out, Age does not necessarily mitigate as seen in Nimagi v State [2004] PGSC 31; SC741(1^st April 2004). Violent criminal offences are committed by those who are young and youthful. The sentence there was 50 years imprisonment for murder committed in the course of an armed robbery. The appeal was dismissed sentence was confirmed with the Supreme Court remarking he should have been charged with wilful murder and the penalty of life imprisonment sought. The public prosecutor should have cross appealed. Therefore, the sentence was proportionate given.
    
20. The authoritative views of the Supreme Court fortify this when it stated:
    

“We are of the view that the principles expressed by the Courts in those cases demonstrate the position the Courts have taken on youthful offenders convicted of serious violent crimes including murder and wilful murder. We observe that in most killings, prisoners who appeal against sentence are normally accorded leniency and greater latitude by the Supreme Court, which seems to lend credence to and fuel the appellants’ misconception that the lives they have taken mean nothing to them whereas, their own lives are more important. We believe it is time that the Supreme Court came out from this kind of mentality and treat young criminals with the stern punishment they deserve. That is what the community expects from the Courts. It is our view that enough is enough, and if we do not punish murderers with what they deserve, we may be indirectly contributing to the escalating violent crimes which have transcended new heights ignoring social and moral values as observed by Kirriwom, J in his judgment and we quite agree with that statement.”

21. Here there is no material in the presentence and means assessments reports that warrants diversion. The balance has not been tilted in favour of diversion giving heed to Part III diversion of the Juvenile Justice Act 2014. Reliance on it must have materials to sway consequences that are due as a result of the sentence due and being imposed upon the prisoner. Part of, or certain portion of the sentence due and imposed by the application of that Act the subject of diversion pursuant. It is backed up by the material to move in that direction. In my view it is discretionary and is a matter of weighing. So, if the proportionate determination is to take diversion as leading then, that is the course due. But if the facts and circumstances do not warrant that is the course due for the prisoner.
    
22. Here there is no basis set out by the Presentence report and the means assessment to tilt any other sentence other than imprisonment. In my view as with Aubuku v The State [1987] PNGLR 267 (29 July 1987) where there are aggravation that increases the sentence. In Homicide wilful murder, there is an intent to exterminate terminate life. And life is terminated as here. It is no mitigation to say he was a dangerous person and could have killed me when the facts do not support that here, the facts do not disclose what was seen out in Kwapena v The State [1978] PNGLR 316, where he was faced against a deadly weapon and had no choice but to act as he did. That is not the situation here in the determination of this sentence upon the prisoner.
    
23. I am conscious that the maximum sentence under the provision of section 299 (1) is life imprisonment without parole for the crime of wilful murder as is the case here. And in this regard the Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). He has deliberately set out to cut up the deceased accompanied by two others of his relatives. That is force superior and outnumbering any defences of the deceased. Hence his eventual demise. It is a persisted attack which left little to no chance of survival for the deceased. This is the clear evidence that calls for a stern punitive and deterrent sentence against the prisoner. Because the reasoning is as stated by the Supreme Court:
    

“The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric,” Nimagi (supra)

24. Like offenders should be treated alike in the sentences that are passed and there must be parity in the sentences meted out. Homicide offences must draw sentences that are proportionate to the conviction recorded. Sentences for Wilful Murder cannot mingle with that of Murder or manslaughter. There must be very clear distinction made as to whether the sentence is for wilful murder, or murder or manslaughter. There are marked differences in the offences know to the law. Similarly, sentences must reflect that fact, Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). The law is meant to serve life. Here the prisoner is the leader of the pack comprising two others. All are armed with bush knives that are mercilessly used against the deceased cutting him all over his body. I have described the gruesome nature of the injuries in the verdict. He stood no chance chased cut up by the prisoner and accomplices. He was calling out for help to no avail. The prisoner was determined to as set out by the facts found in the verdict. There was very strong desire to kill led by the prisoner who was the leader of the pack in terminating the life of the deceased. There was very strong evidence of the intent to kill the deceased by the prisoner. And he carried out that intent to the demise of the deceased. In my view given it is a category three situation pointed out by Kovi (supra) going 20 to 30 years imprisonment.
25. The merciless cutting of all of the deceased limbs over he’s hitting their canoe is likened here State v Malala [2018] PGNC 310; N7414 (16 August 2018). Deceased is chased like a pig hunted and cut up mercilessly all over his body. There are gaping open wounds that leave no room for survival and he has admitted to inflicting three says prisoner. This court in an armed robbery that culminated with the death of a victim imposed 50 years upon a similar youthful offender in Nimagi (supra) confirmed on appeal. And if glossed with section 19 (6) of the Criminal code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health, Tardrew, Public Prosecutor [1986] PNGLR 91. This is living out the Juvenile Justice Act relevant provisions set out above. I find no basis to deviate on the basis of the material relied on other than a custodial term due the prisoner.
    
26. And here taking account of all above including other more serious offences of wilful murder Ume v The State [2006] PGSC 9; SC836 (19 May 2006) where the deceased suffered torture and suffering to the extreme before she succumbed to death, life imprisonment was substituted on appeal for the death penalty. Here is bush knives cuts that persisted to the demise of the deceased. There are no extenuating circumstance within the meaning of State v Hagei [2005] PGNC 60; N2913 (21 September 2005) 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 into 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.
    
27. That is not the situation here considering. There are no circumstances apparent or identifiable to warrant otherwise than a sentence of 20 years imprisonment in hard labour. And I so impose that sentence of 20 years imprisonment in Hard Labour upon the prisoner Shedrick Baga of the crime of wilful murder pursuant section 299 of the Criminal Code Act committed upon Ezekiel Samson.
    
28. Warrant of Commitment will issue in accordance.
    

Orders Accordingly

_______________________________________________________________

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defendant