N10867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 403 & 406 & 407 OF 2023

THE STATE

V

BEN GUNA
(No 2)

Minj: Miviri J
2024 :18th & 19th June  

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Death from Gunshot – Body Cut by Bush knives – Prisoner cut Deceased with Bush Knife – Prisoner Detained Wife of Deceased over a period & Raped Her – Very Determined Persistent Defiance of Rule of Law – Three Individual Offences – Three Separate Sentences – Totality Principle – Principal Offender – Intent to Kill – Killing – Worst Offence of Wilful Murder – Life Imprisonment.
CRIMINAL LAW – PRACTICE AND PROCEDURE – Rape S 347 CCA – Deprivation of Liberty Section 355 CCA – Wife of Deceased – Determined Persistent Abuse Defiance of Rule of Law – Innocent Persons Drawn Indiscriminately into – Protection of the Law – Protection of Women & Females – Prevalent Offence – First Offender – Principal Offender – Violation of a Married Woman – Forcefully Abducted & Detained Against Will Two Weeks – Strong Deterrent & Punitive Sentence – 20 years Imprisonment – 1 year Imprisonment for Deprivation of Liberty – Concurrent To Wilful Murder – Totality Principles – Life Years Imprisonment.

Facts
Prisoner was in the company of others who ambushed and shot the deceased in the forehead with a gun killing him. Then they set about cutting his body and then forcefully taking away his wife raping her along the way. Then taking her away to their village detaining her. There the accused sexually penetrated her without her consent.

Held
Worst offence of wilful Murder.
Persistent determined abuse of 
Rule of Law
Protection of Law.
Prevalent Offence.
Punitive Deterrent Sentence individually
& Severely.
Totality Principles
Concurrent sentences Rape, 
Detention against Liberty
Life Imprisonment.

Cases Cited: 
Kalabus v The State [1988-89] PNGLR 193
Aihi v The State (No 3) [1982] PNGLR 92 
Lahui, Hetau, Noho and Eki, The State v [1992] PNGLR 325
Pushi v State [2015] PGSC 11; SC1415
Gimble v The State [1988-89] PNGLR 271
Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000).
Ume v The State [2006] PGSC 9; SC836
Kovei v The State [2001] PGSC 5; SC676
Simbe v The State [1994] PNGLR 38
Kovi v The State [2005] PGSC 34; SC789
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
State v Genia (No 1) [2024] PGNC 78; N10731

Counsel:
J, Kesan, for the State
R, Mangi, for the Defendant
		
SENTENCE
19th June 2024

1.	MIVIRI J: Ben Guna of Waramass village, Jimi, Jiwaka Province convicted of the wilful murder of one Philip Gilma now appears to receive his sentence of that crime. Not only that but he is also to be sentenced for taking away the wife of the deceased one Anita Philip then allowing another to rape her. Then taking her away, detaining her against her will and then raping her whilst confining her in a house against her will. 

2.	The offence of wilful murder pursuant to section 299 of the Criminal Code carries the maximum imprisonment of life. In the case of rape pursuant to section 347 he is also looking at the maximum of life imprisonment. Because the offence is committed after the husband is wilfully murdered. She is taken along the way raped, detained against her will, and then raped. It is in my view not a simple rape but is aggravated by these facts. She is treated like a sex object at the leisure and pleasure of the prisoner and accomplices. So, it will not be the case that 15 years imprisonment will be considered in his case. As it is aggravated and so will draw to the maximum of life imprisonment. It is clear that individual sentences for each of the three criminal offences convicted will draw the prisoner. But not automatic but dependent on the facts and circumstances set out. And the maximum penalty will draw if the determinations by the facts and circumstances paint this offence as the worst case: Kalabus v The State [1988-89] PNGLR 193. Life imprisonment was imposed upon the prisoner who had a prior conviction for rape. He raped a nine-year-old girl killing her in the process. Life imprisonment was imposed as it was the worst case of its kind.

3.	It is really a question of the facts and circumstances to settle what a worst case is. As no one case is the same each would draw its own sentence by its own facts and circumstances. It is an intricate act of judicial discretion exercised in accordance. It is a balancing act between the aggravating, mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92. What is aggravated immediate is that not only was the husband intended to be killed, and killed, but the wife was forcefully taken away raped along the way, detained against her will and then raped by the prisoner. After which she was rescued by relatives after two weeks. When other offences are compounded in the process of the original crime committed, then it would follow that the sentences imposed will reflect that fact: Lahui, Hetau, Noho and Eki, The State v [1992] PNGLR 325. Robbery of the subject vehicle with the deceased dragged along the streets of Hohola Port Moresby, landed life imprisonment because it was the worst case of its kind.

4.	Here no evidence has come out as to why the deceased was set upon in the way he met his demise. And then his wife forcefully taken away, raped and taken away detained and raped. No motive has come out for the series of offences committed in that way. No man is above the rule of law, all must adhere to the dictate and realm of the law. Defiance in this way will draw stern deterrent and punitive sentences. Deterrence must be bolded upon offenders and the ever-prevalent trend of this offences must be shown the face of the rule of the law. This prisoner was able bodied at the time of the commission of the offence. His demise as to why he was shot whilst in remand has not been highlighted to court. It is not immediate to the offence. Therefore, the sentence will not be dictated as there is no evidence placed to go anyway other than his role in the offence.  He is 24 years old a first offender of the SDA Christian faith. It is clear by the evidence led by the state that he led in the offence and contributed to cutting up the deceased with the others. Then he detained the wife of the deceased over that period of two weeks. Along the way he did not stop her being raped. Then he himself detained her and committed rape upon her. He played a leading role in the crime, and which will be rewarded in the sentence due: Pushi v State [2015] PGSC 11; SC1415 (26 February 2015). Without the role he executed, the crime would not have been successfully executed. Whether he was a watchman, or the person who shot the deceased all played equal parts to the success of the offence: Gimble v The State [1988-89] PNGLR 271. He is sentenced on the basis of his role in the crime. He is a leader in the crimes that were committed.

5.	In this regard it is important to consider one’s circumstances before one set out to commit a crime. I consider the allocutus of the prisoner who now accepts that he was wrong to commit the crime. And that his actions have led to the demise of the deceased. And that he apologises but that is in the face of a trial leading. It may have been more weight in his favour if it was a guilty plea to the offences. For all it is worth it does not outweigh the gravity of the offence. It has not erased the seriousness of offences compounded to the death of the deceased and brutal separation with his wife who was subjected to repeated rapes and detention. Our womenfolk are equal before the same Constitution that extends from the tip of Papua New Guinea at the Southern end to the Northern end. From the Eastern End to the Western End. The realm of the Constitution is supreme protecting all under its wings. Minj, Jiwaka, is no exception and the weight of the offence aggravating outweighs any mitigation. There is none disclosed to derail the aggravating features. Those who stepped out of it into the domain of crime bear fully the consequences flowing from their actions. Personal circumstances must be at one’s focus when crime is resorted to. It will not alleviate what is due upon the offender, as is the case here: Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23rd November 2000). So, the personal circumstances of the prisoner do not effect what is due him for his crime.

6.	In Ume v The State [2006] PGSC 9; SC836 (19 May 2006) the crime is motivated by revenge but taken out on an elderly innocent old woman repeatedly raped and murdered sustaining life years on appeal reduced from the death penalty. There is no reason nor motive for the offence upon the deceased and his wife who were ordinary citizens going about their chores in life. It in a way will equate what the Supreme Court saw in Kovei v The State [2001] PGSC 5; SC676 (14 November 2001) and where life imprisonment was confirmed on appeal against sentence at first instance for murder, abduction and rape, as is the case here. She was repeatedly raped at several locations and then killed. It is the same set of facts and circumstances here. It will be visited similar by its own facts and circumstances. I am fortified that I am not bound by tariff and range but the facts and circumstances of this offence, Simbe v The State [1994] PNGLR 38. The Court is not the legislature and will not take those shoes.

7.	This is a wilful murder that would fit out in the fourth category:Kovi v The State [2005] PGSC 34; SC789 (31 May 2005), because there is viciousness in the attack upon the deceased as set out by the facts found. There is extreme brutality because not only is he shot in the head with the gun, but as soon as he falls, he is converged upon by the prisoner and accomplices and cut all over his body without mercy. He dies from that brutal attack and then his wife is set upon dragged away forcefully, raped along the way, detained over a period of time and raped by the prisoner. It shows complete disregard for life, law and order. It must be visited with a stern deterrent and punitive sentence emphasized in that fourth category. I reject outright the submission of defence council for these reasons. It is not on par with the facts and circumstances. There would be grave injustice to follow that submission, and it is without any merit given. It will not be considered in favour of the prisoner. Here is complete disregard for human life and sanctity thereof. There is no regard for in the use of the offensive weapons firstly a gun then bush knives. 

8.	I consider that all are part of the same transaction in the light of Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85, therefore the sentences passed will be concurrent as all offences arose from the same transaction. There was wilful murder committed and then there was rape, and deprivation of liberty pursuant to section 355 of the Code. It is a maximum sentence of three years imprisonment. Here I consider in view of all set out above, that a fair and just penalty for that offence will be 1 year imprisonment in hard labour. In the case of rape for the reasons set out above, I consider that a fair, just and proportionate penalty given would be 25 years imprisonment in hard labour. Both would be served concurrent to each other. That is 25 years imposed for the offences. This is a deliberate well-planned crime that took the life of this man, his wife was detained forcefully raped by accomplices and raped by the prisoner. She was detained there in their village, confined in a house for almost a week, within which Prisoner Ben Guna had sexual intercourse with her on the 11th May 2021 at about 2.00pm. And she was held in that village until her relatives came and rescued her on or about the 15th May 2021.

9.	His sentence flows from that offence and his role is clear from the evidence of both eyewitnesses read in the light of the law in principal offenders in Amoko, The State v [1981] PNGLR 373. It is very clear Prisoner was an active participant, a leader in the offence and would fit what the Supreme Court set out in Wani v The State [1979] PNGLR 593. He is not merely present there, but actively takes part in the cutting of the deceased with the bush knife that he held and used. I am convinced that there is intent to kill the deceased as set out in the facts, there is no other reasonable hypothesis given, he was shot with a gun and then cut up repeatedly, there is intent to kill and there is a killing: State v Genia (No 1) [2024] PGNC 78; N10731 (27 March 2024). He mercilessly detained and committed rape. 

10.	I sentence the prisoner Ben Guna of Waramass village, Jimi, Jiwaka Province for the wilful murder of Philip Gilma upon the Indictment dated the 12th June 2024 to life imprisonment. And the sentence is in those terms because of all the reasons I set out above. Although different distinct offences but part of the same transaction and so will be served concurrently with the 25 years imposed for rape. 

11.	The sentence is life imprisonment. No deductions are made because of the pronouncement that he serves in life imprisonment forthwith.

Orders Accordingly
__________________________________________________________________
Office of the Public Prosecutor:  Lawyer for the State	
Office of the Public Solicitor: Lawyer for the Defendant