N10574

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 766, 767, 768, 769, 770, 771, 772, 776 OF 2023

THE STATE

V

RUBEN SIP, EMIL SAU, SAMUEL AING, RONAL AING, YEVI SEBASTIAN KIPMA, ISSO KIPMA, DAVID KIPMA and BRADLEY RUN All of NINGRA, VANIMO GREEN, WEST SEPIK PROVINCE

Vanimo: Miviri J
2023: 13th & 20th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Nollie Prosequi x 6 Accused – Discharged x 6 – Released from Custody forthwith.

 CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – death – intent to kill – Guilty Plea x 2 – Deceased Cut All over Body with Grass Knife & Bush knife – Prisoners Led A Group Retaliating Against Deceased For Threatening & Robbery – Prisoners Leaders – Section 7 Aided Abetted Each Other – Excessive Bleeding From Cuts to Right Arm & Leg – Left Neck Laceration Involving Carotid Artery Severed – Cut All Over Body – Determined Persistent Attack – Attack In Premises House of Deceased– No Respect for Rule Of Law – Sanctity of Life Section 35 Right to Life – Taking Law Into One’s Own Hands – prevalent offence – 40 years Appropriate.

Facts
Prisoners were Leaders of a group of men who went searching for the Deceased who had attacked and stole from one of their relatives. They were armed with bush knives and grass knives and other weapons accompanied by the others. Finding the deceased, they set upon him cutting him all over the body from which he bled to his death. They had intended to kill him at the time they attacked him.

Held
Intention to kill.
Retaliatory Attack.
Group Attack. 
Sanctity of life.
Law into own hands.
Prevalent offence.
Strong deterrent sentence.

Cases Cited: 
Kumbamong v State [2008] PGSC 51; SC1017
Simbe v The State [1994] PNGLR 38
The State v Manu Kovi [2005] PGSC 34; SC789
Baipu v The State [2005] PGSC 19; SC796
State v Jackson [2006] PGNC 154; N3237
State v Mohavila [2006] PGNC 106; N3385
Michael v The State [2004] PGSC 37; SC737
Sanawi v The State [2010] PGSC 31; SC1076
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000
Anis v The State [2000] PGSC 12; SC642
The State v Nimagi [2004] PGSC 31; SC 741
The State v Aihi (No 3) [1982] PNGLR 92 
The State v Hagei [2005] PGNC 60; N2913

Counsel:
F. Popeu, for the State
O. Himore, for the Defendants

SENTENCE

20th November 2023

1.	MIVIRI J: The accused, Ruben Sip, Emil Sau, Samuel Aing, Ronal Aing, Yevi Sebastian Kipma, Isso Kipma, David Kipma and Bradley Bun were all jointly indicted that they on the 26th October 2022 between 6.00pm to 7.00pm went looking for the deceased Lemek Baindu. He had earlier that day threatened and robbed Isso Kipma. 

2.	Yevi Sebastian Kipma was armed with a long grass knife and Ruben Sip was armed with a meter long bush knife. And the others were also armed with bush knives, bow and arrows, an iron rod, grass knives and other weapons. They intended to attack Lemek Baindu asking people for his whereabouts. They eventually located him at Wusipi Road between Vanimo Secondary School and Don Bosco. Ruben Sip grabbed him, but he struggled clear of him, but Yevi Sebastian Kipma attacked him and cut him with the bush knife on his legs and other parts of his body, inflicting cuts to various parts of his body.  Then they left him there lying on the ground and walked away. He was taken to the hospital for treatment but was pronounced death on arrival. 

3.	Postmortem Examination conducted on him showed that he sustained multiple wounds to various parts of his body. But the main ones were wounds to his right leg and arm causing him to lose a lot of blood leading to his death. Section 7 of the Code was invoked against both Accused that they had aided and abetted each other in the killing of the deceased. And they had intended to kill him and did kill him. All were indicted with section 299 of the Code of wilful murder.

4.	These gruesome details are explicitly confirmed in the medical report of Doctor David Aisanga medical officer confirming his examination at postmortem of the body of Lemek Baindu. Corona number 45/2022 that he on the 23rd November 2022 performed the subject autopsy, body identified to him by one Bonansus Baindu biological elder brother of the deceased.  It is relevant to set out the “Report Summary:

On examination he was found to have these injuries: Head- the hair appeared to be approximately 5-8mm, there was a clean scalp peel off laceration [from a sharp knife] 5cm x 4cm x 6cm in size, skull visible at the back of the head. 

Right Arm- there was a bush knife or grass knife laceration approximately 2cm x 6cm and deep to the bone at the elbow [near amputation], continued longitudinally above elbow to forearm with length approximately 7cm. 

Right Leg- there was a below knee clean [sharp] laceration approximately 12cm x 3cm and deep to the bone posterior, all calf muscles involved.  

Back-Left Pelvis-there was a stab wound from a sharp spear [arch mesh wire spear?] that stopped the pelvic bone. 

Left Shoulder superficial skin laceration Y sharped approximately 12cm x 2cm x 3cm. 

Central back documented a superficial laceration approximately 9cm x 2cm. Below back has a superficial laceration diagonal 11cm x 1cm. 

Left buttock superficial laceration 7cm x 1cm. 

Pathology summary. 
(i)	Multiple grass knife wounds to all over the body.
(ii)	Hypovolemic shock from massive blood loss from right leg and right    arm laceration.
(iii)	Physical assault from sharp weapon [grass knife]
(iv)	The direct cause of death is hypovolemic shock secondary to severe haemorrhage from two massive grass knife wounds to right arm and right leg.”

5.	In its discretion the State filed nolle prosequi on the charge against the accused Emil Sau, Samuel Aing, Ronal Aing, Isso Kipma, David Kipma and Bradley Bun who were all discharged and released from custody of the charge.

6.	Leaving Ruben Sip and Yevi Sebastine Kipma who both pleaded not guilty to the arraignment, so counsel applied for an adjournment to speak to both accused. After which when the Court reconvened, both pleaded guilty to the Indictment of wilful murder set out above of the deceased. 

7.	On allocutus, Yevi Sebastine Kipma said, “I say sorry to the victim what has happened has happened. I say sorry to Justice for waiting time on the case, and to the Court and to GOD. I also say sorry to the Counsels and whoever is in Court.” 

8.	Ruben Sip on allocutus stated, “I am sorry for what I did to the deceased and to his family. I say sorry to the Court, my family and counsel.” He was a first offender originally from Ningra Vanimo. He is a resident of Wara Bris Hamlet Ningra Village. He has two wives with six children, four from the first and two from the second. His house was set on fire as a direct result of the actions that he has now being convicted of. He has both his parents who are old looked after by him because he is the first born out of six siblings. He was of the four-square Christian Faith. Employed as a Security guard earing K 250.00 with the Chinese Railway Construction Company although he has no formal education. He contended that he had paid K10, 000.00 towards compensation of the deceased. Which is self-serving and not independently verified so as to bring that in favour of the prisoner. It is the same assertion by his co prisoner also not verified. It is therefore not considered as having taken place and will not weigh in the sentence due to the prisoners.

9.	Sebastian Kipma Yevi is 55 years old married living at Wara Bris also in Ningra originally from Niaugragai in Wosera married with nine children, five grown up with four currently with him. He is the last born of eight (8) siblings. He was employed as driver of the Vanimo Secondary School Bus and self employed as a motor mechanic and driver. He was in Lae as a Security Guard and left that job came back to the village in 2012. He has no problems with health except his eyesight developed at CIS.  

10.	Both prisoners asked for presentence report which were tendered in Court on their respective behaves. Except for the personal particulars the presentence report in both cases replicate against both their sentences. One Cosmos Umabut Ward Development Committee Chairman Ward 6 was interviewed giving evidence particularly as the background for the retaliation of the prisoners against the deceased. He reportedly was cause for concern in the community allegedly for criminal activities. These are serious concerns that will be addressed in sentence as reason for the attack by the prisoners upon the deceased. That it was more a case for an eye for an eye, a tooth for a tooth in the way that the prisoners took to against the deceased. Yet another similar assertion is made to by one Patrick Baita Bewani Wutung Onei LLG Village Court Magistrate who states of the prior good conduct of the prisoners in the Community and that deceased was exploiting terrorizing innocent mothers and children in the Community there before they took the course that they opted. Both prisoners he states are leaders within that community and stood there for the community in what they did. 

11.	Brother of the deceased one Bonasius Baidu of Warastone Ward 6 states that there should be compensation for the death of his brother paid by the prisoners following their custom in Angoram to the wife of the deceased, so that she can remarry now that he is dead through the hands of the prisoners. One other person interviewed in the presentence report is one, Pastor Lui Saun of Warastone, Ward Six Vanimo states that he employed the prisoner Sebastian Kipma as his PMV bus driver. And he found him to be respectful and family oriented. That the deceased had attacked the son of the prisoner with a bush knife at his residence breaking the large bone on his left arm. It was reported to Police, but the deceased was evading arrest. And he was considered an iron man in the community. And the attack that day was a culmination of the deceased actions where he attacked and robbed the prisoner’s son at his graduation. It was also fuelled by rape allegedly committed by the deceased on a Malol woman married to a man from Kiliwes in Bewani. And the actions of the defendants were on behalf of the community. 

12.	Retaliatory action because of law and order allegedly committed at the hands of the deceased have one way to be resolved by the criminal justice process. It will not be tolerated nor excused by public taking it upon themselves to self-correct and penalized as here. Death sentences are no longer written as part of the laws of this Country under the Criminal Code. It is a grave matter against each of the prisoners in their fifties, mature man who should know better. Just because the deceased had been responsible for criminal activities, did not give them the licence and the authority to round up vigilantes to avenge what was happening in the community at the hands of the deceased. They were not authorized in law to determine guilt or innocence of the deceased and pass sentence as they did here. It was the reason for their actions but was not justified by law.

13.	 A wilful murder is an intent to take life and life is taken. It will draw penalty in accordance with its own facts and circumstances. The present is no different: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Each prisoner will be dished out what is proportionate by their own individual facts and circumstances in law: Simbe v The State [1994] PNGLR 38.

14.	 Sentence will be in conformity generally with each category of homicide offences Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). Here is category three (3) and four (4) by that precedence. But both prisoners have pleaded guilty and expressed remorse for their actions. It was an offence that was well planned and well executed with precision involving a group of men led by the prisoners. They were leaders and led these criminal actions which was a very brutal killing depicted out by the medical report set out above. Including the planning and execution set out above. There really is no mitigation except that the prisoners are a first offender, in their fifties in age and advanced in life. But this is rendered subservient by the gravity of the offence detailed out by the weapons used and the manner of its execution. And the killing was determined and persistent. He may have been an ill-reputed person in the Community. 

15.	This is now almost the 48th anniversary of the Independence of our Country. And Christianity has come into our midst and is part of our lives by our Constitution. The sixth commandment of the ten (10) commandments that GOD gave is, thou shall not kill. Clearly the deceased was killed in defiance, because of his repute within that community adjudged by the prisoners deserving of what was the crime on this day. Where would this Conduct lead to if even village court officials are not immune from this tentacle of violence rampant country wide: Baipu v The State [2005] PGSC 19; SC796 (1 July 2005) and State v Jackson [2006] PGNC 154; N3237 (24 October 2006). They themselves have become victims to this unprecedented level of violence, defiance, abhorrence of the rule of law. On appeal 25 years was substituted for life imprisonment. And the latter drew 24 years IHL on a guilty plea, both on a charge of murder, not wilful murder as is the case here. If this is the kind of violence that will be visited even on village court officials should the Constitution be bended backwards to condone this violence. I think not, it is time to settle the supremacy of the Constitution and the dictate it bestows upon this Court: State v Mohavila [2006] PGNC 106; N3385 (25 October 2006). That is still very open given my facts here against the prisoner.

16.	The Courts must not fail in their spirit to the Constitution and to the People and must deliver justice fair and square, because who else will serve the people justice. And the Supreme Court endorsed this in very broad terms saying, “Accordingly, we are of the view that in the light of the fact that more and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increase level of such serious crimes as, wilful murder, murder, manslaughter, rape and armed robbery, Michael v The State [2004] PGSC 37; SC737 (1 April 2004).

17.	It would not be parting company with parity where; “A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exit in one case at the same time. There could be just one such factor or there could be a combination of them,” Sanawi v The State [2010] PGSC 31; SC1076 (29 September 2010). The facts are very clear both were leaders of the pack in the attack.

18.	Both prisoners will be dished out what is called in law unto them: Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000. And in this regard I do not classify them in the same as Anis v The State [2000] PGSC 12 SC642 (25 May 2000) where the youthfulness of the offenders was not given due consideration in the sentence that was given for aggravated armed robbery of a factory. Both are leaders to the demise of the deceased directly and are not young at heart who have been lured by adults to commit the offence. The Supreme Court rejected the plea of youthfulness and confirmed the sentence of 50 years for murder in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). I take that view and stance given the meaning by the Supreme Court. Violence cannot be met with violence and illegality.

19.	Every man is innocent, just as the prisoners were until the verdict announced after consideration of all. The process of law was not exhausted to return the verdict against the demise of deceased. He was neither charged nor was he convicted of an offence that was written in law. Nor was his penalty, nor did it have the seal of the Legislative Counsel as emanating from the chambers of parliament duly passed with a number and date coming into force. He died charged by his accusers who also carried out his penalty, which was death by Bush knives and grass knives. This is very clear breach of the Constitutional provisions under section 37 Protection of the law. He died without a law spelling the offence and penalty section 37 (2) of the Constitution. And it is even a very serious breach of section 35 right to life also of the Constitution. The Constitution of Papua New Guinea is supreme Law. This Court will be its guardian and will ensure its reign is without question. And this sentence will reflect.

20.	The prisoners can be sentenced to a maximum of life imprisonment by section 299 (1) of the Criminal Code. Judicial discretion will be exercised in accordance with the mitigating, aggravating and extenuating circumstances to arrive at a proportionate sentence due him for his crime of wilful murder: Aihi v The State (No 3) [1982] PNGLR 92. 

21.	In my view I have tried to set all these out in the headings of the discussion set out above. After due consideration also that there are no extenuating circumstances as viewed in State v Hagei [2005] PGNC 60; N2913 (21 September 2005). I determine that the proportionate penalty due for the wilful murder of Lemek Baindu committed by the prisoners on the 26th day of October 2022 at Wusipi road Vanimo is 25 years imprisonment. And I so impose that upon the prisoners.

22.	I order that the time in custody will be deducted from the head sentence of each prisoner forthwith and they will serve the balance in jail forthwith.

Orders Accordingly,
__________________________________________________________________
Office of the Public Prosecutor:  Lawyers for the State
Office of the Public Solicitor: Lawyers for the Defendants