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State v Bobby [2024] PGNC 291; N10959 (26 July 2024)

N10959

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1467 OF 2023

THE STATE

V

PAUL UNAP BOBBY

Minj: Miviri J
2024 : 19^th 24^th 25^th & 26^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – intent to kill – Deceased Stabbed with Knife in Store in Broad Daylight – Strong Intention to Kill – Repeated Stabbing – Respect for Rule Of Law – Protection of Life – Rule of Law – shall be sentenced to life imprisonment – Mandatory Commanding Language – Application of Law By Court – Not Legislating Not Prerogative of Court – Prevalent Offence – Sanctity of Life – Constitution Protection – Life Imprisonment IHL.

Facts
Accused went into Shop where Deceased was and stabbed him in the chest with a knife intending to kill him. He died as a result.

Held
Intention to kill.
Protection of law
Right to Life
Sanctity of Life
Rule of Law
Intent to Kill Overt
Killing
Life years IHL.

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Manu Kovi v State [2005] PGSC 34; SC789 (31 May 2005)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Paru (No 3) [2021] PGNC 385; N9248 (3 November 2021)
State v Pritchard [2016] PGNC 15; N6183 (12 February 2016)
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017)
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020).
Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)
Tanga v State [1999] PGSC 4; SC602 (19 April 1999)
State v Er [1998] PGNC 78; N1749 (31 July 1998)
State v Javopa [2014] PGNC 49; N5579 (17 April 2014)
State v Soso [2015] PGNC 185; N6082 (21 September 2015)
Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004)
State v Guna (No. 2) [2024] PGNC 199; N10867 (19 June 2024)

Counsel:
F. Popeu, for the State
D. Pepson for the Defendant

SENTENCE

26^th July 2024

1. MIVIRI J: This is the sentence upon Paul Unap Bobby of Dimil Minj, Jiwaka who wilfully murdered Jack Juu.
   
2. He was convicted in that on the 21^st September 2022 here in Minj the deceased Jack Juu was inside the Shop Ray Hills Trading talking with another person. The Prisoner came from the back approached the deceased took out a knife and stabbed him on his chest and then swung again and stabbed him a second time on his upper left arm. He then ran away out of the shop into the crowd outside whilst the deceased was desperately rushed to the Kudjip Hospital but was pronounced dead shortly after arrival. He had intended to kill the deceased and killed him.
   
3. The Charge was pursuant to section 299 (1) of the Criminal Code Act which is prescribed in this way:
   
   • (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 sentenced to life imprisonment and is eligible for parole after 30 years.”.
4. The maximum sentence that is due upon the prisoner is life imprisonment. It will be considered if his facts, circumstances, both aggravating and mitigating are such that the only proportionate term is life imprisonment, can that be imposed: Aihi v The State (No 3) [1982] PNGLR 92. His determination can be summed in the evidence of Alpha Johnny first witness for the State in these words, upon seeing I said, “hey knife come ya.” But it was late he had stabbed him in the chest. Blood sprouted out and I got blood also on my body. Then he removed it and again stabbed him in the upper left arm. He had a wool cap drawn over his head, but the face was exposed. He explained that it was a traumatic experience which he would not forget the face of the accused. And identified him in Court as the person he saw on that day. He admitted that he did not know him by name. And it was the first time to see him. It was put to him that what happened was within a very short period, so he could not identify the person. He maintained that it was a traumatic experience that he would not forget the face of the accused. These are circumstances that are peculiar to this offence which is material in drawing the appropriate penalty. It is discretion that must be exercised judicially relative to its facts and circumstances: Simbe v The State [1994] PNGLR 38. Because no one case of wilful murder, or homicide is the same as any other, each has peculiar facts circumstances that will eventually beat out into the proportionate penalty due: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). It is also appropriate to consider tariff and range relatively suggested by Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005).
   
5. That is clearly commanding language that upon conviction, he shall be liable to be sentenced to life imprisonment and is eligible for parole after 30 years. When glossed in the light of section 35 Right to life under the Constitution it is very pertinent and clear, that “No person shall be deprived of his life intentionally except as sanctioned by law. The will of the people of Papua New Guinea through their elected legislature, Parliament, points that wilful murder is not a light matter. It shall not be taken without due process of law. It is a very serious crime to terminate the life of a fellow human being. Once dead that is the end of him. He will not come back from the grave ever. It is not the same for the prisoners who may sometime in the future return after service of the sentence imposed. The sentence that is imposed enforces the sanctity of life. That all live once only. It is therefore of fundamental importance for the sentence to reinforce that fact. Here there is sheer determination for the extermination of the deceased by the prisoner. Because He was not distracted nor was, he deterred that it was in a public area. It was in a shop that was located in the Minj rotbung market. A place that was frequented by men, women, children alike. He did not consider that but was intent on what he set out to do. Even in the midst of other customers within the shop, including children from school who were there in that shop after school had finished for the day. Both witnesses saw him up close as he executed the deceased in their view with others also there including children. It is sheer determination to kill the deceased and to kill him. The stabbing is calculated on the chest one of the most venerable areas of the body. It was meant to take the life of the deceased. From the description of the eyewitnesses set out above, there was no room for the deceased to escape the demise of what was meted out by the prisoner upon him. The warning did not attain any life for the deceased. Because from his conduct he was left nothing to chance. The stabbing was repeated on the left upper arm.
   
6. Obviously from all set out above there was planning in the offence. Where he would escape after he had executed the crime. Public Places such as markets shops playing fields and any public frequented area must always be protected. The life limb of all must be guaranteed safety security. It is not necessary that they must always be policed. But the rule of law must be bold and overarching in such areas. Criminals who set themselves greater than the law must be put back in their right place, in compliance adherence with the law. I determine all here and lay out that this is a situation that will fall as a brutal killing. It was in cold blood and the deceased did not provoke or that there was anything that prompted his action. He was not retaliating to acts against him. The deceased was unsuspecting and died without standing any chance to defend himself. The prisoner surprised the deceased with the attack. It means he had worked out how to contain the deceased there and then without drawing any retaliatory action. There is very strong preplanning, and a trial was run. A very dangerous knife described as a USA knife. Drawn out by the first witness in the box it was certainly a menacing weapon. It had a sharp blade pointed edge and jugged back or edge. Upon stabbing it would have torn out the flesh upon being withdrawn after the stabbing. I consider these are facts in line with category 4 where life imprisonment is warranted.
   
7. Prisoner is originally from Dimbil, Jiwaka Province. He is a first offender. In allocutus he recounted, “I said I am not guilty, the Court found me guilty. I am never a bad guy. I have a good record in the Community. In my carpenter work I assist in Churches not in Jiwaka, all the way to Ramu Sugar. I build many Churches classrooms and staff houses. I do a lot of charity work. I do not become enemies to anyone. I am a church goer. I am from the EBC Church. Now before Court I want to request that I am married 2020. I have two children girl is 4 years old. And Boy is 2 years old. What this happened I did not know this would send me to prison When this came up Political differences People conspired put me into prison. I did not expect it. It has affected my people. There is big fight in the village where a lot of properties have been lost including high covenants houses a 10-seater vehicle which is running into the millions. K 45,000.00 and 30 pigs has been paid. I have a wife and two children. This is not my problem. Have mercy on me.”
   
8. Mercy is a two-way system. He exerted nor gave any mercy to the deceased. It is not a guilty plea. It is a trial he must bear the brunt of that fact. There are no extenuating circumstances as seen in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) and therefore there will be no deduction in respect of the sentence passed. And the facts do not spell out what was observed for the purposes of section 19 for suspension of the sentence within Tardrew, Public Prosecutor v [1986] PNGLR 91. It is serious and well planned because there is no resistance to his stabbing of the deceased State v Paru (No 3) [2021] PGNC 385; N9248 (3 November 2021) who was a well-trained soldier who used that knowledge and skill to kill the deceased as he did. He was sentenced to 30 years IHL for wilful Murder. It would not equate what was seen by this court in State v Pritchard [2016] PGNC 15; N6183 (12 February 2016) to come to the sentence of 30 years for a well planned and executed crime of wilful murder. She was the co accused of James Paru convicted. And it certainly will be near Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). That was a well-planned well executed crime of wilful murder of eight (8) persons at sea. It drew out the death penalty. This case will follow in similar foothold life imprisonment.
   
9. It would not be erroneous to sentence the prisoner to life years imprisonment in hard labour given all set out above. Nor would it be erroneous accepting that the Prisoner with his people have paid compensation. That is acceptance of a wrong committed to amend by that fact. But it must also be placed on record that no amount of compensation will pay one’s way out of jail prescribed by the Legislature. Compensation is to K 5000 by the Criminal Compensation Act. And the Supreme Court has made this explicit in Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). It will and does not make any difference to the overall conduct of the prisoner. He will be destined his dues by the Legislature. The court will apply the law not legislate.
   
10. Because no man has the right to cold bloodedly take the life of another fellow human being in this way, section 35 of the Constitution is curved out on Stone. And it is not wrong that the prisoner will be sentenced to Life years imprisonment IHL. Because these are facts not likened to Simbe’s case (supra) or Marangi v The State [2002] PGSC 15; SC702 (8 November 2002). It is not by fists as in Tanga v State [1999] PGSC 4; SC602 (19 April 1999), which was a conviction of manslaughter, and quarrel over sentence of 12 years for that crime in the Supreme Court. The sentence at first instance was confirmed and the appeal was dismissed. Nor would this equate State v Er [1998] PGNC 78; N1749 (31 July 1998). That was a plea to murder where the sentence of 8 years was imposed upon the prisoner wife who killed the defacto of her husband. This is not a crime of passion as is that case of murder. This is wilful murder given its facts and circumstance not warranted in the manner that the prisoner has dished out.
    
11. In my view he is no different from State v Javopa [2014] PGNC 49; N5579 (17 April 2014) who pleaded guilty to the double wilful murders of Mother and son, de facto wife. He took them into his garden away from any help and delivered fatal blows with the bush knife that he held killing in the garden. He cut the child who was carried by the mother and proceeded to cut the mother in the same manner killing both. He was incensed by the father that the mother had spent the night with her former partner. The court considered and imposed life sentences in both counts of wilful murder despite the state’s submission for the maximum penalty of death. I hold that this is a similar set of circumstances and facts. There is no reason for the actions of the prisoner in stabbing viciously twice with the USA knife on his chest then on his arm. It is clear that he may have had relationship with the wife now of the deceased and so went to do what he did in full view of the wife and all in the shop unlike Javopa (supra).
    
12. Further in State v Soso [2015] PGNC 185; N6082 (21 September 2015) the prisoner pleaded guilty to the murder under section 300 of his wife who he had set upon violently a number of times forcing her out to seek refuge with relatives. On this occasion he sought her out at her sister’s house. There he chopped off her neck and her body killing her. The court considered that it was the worst case of murder and imposed life imprisonment.
    
13. Whether it is with a knife, or a bush knife, or a gun, or axe, the fact of the matter is a human being’s existence is denied intentionally. The prisoner without mercy, pitilessly, without fear, without any emotion, senselessly takes away the life of another fellow human being. I have deliberately set out section 299 of the code charging the prisoner to show the language of the Legislature in wilful murder. The intentional taking of law “shall be sentenced to life imprisonment” is very clear and explicit language by the people of Papua New Guinea through their parliament against this conduct here evidenced by the prisoner. He takes what the law prescribes. I do not make laws, nor do I interpret outside of the law. I apply the law because, “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 have 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 the 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 value 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 v The State [2004] PGSC 31; SC741 (1 April 2004).
    
14. In the aggregate of all I set out above, it is explicit that the life of human beings has become cheap. And whether it is in an ambush situation, or where they are further offences committed, it is another human being who is brutally taken from his right to life. He is no less a human being than the prisoner. Both are protected by the same Constitution. It is in my view fitting to impose life imprisonment given: State v Guna (No. 2) [2024] PGNC 199; N10867 (19 June 2024).
    
15. There is no sanction of the rule of law here, educated gospel waving, charity handed persons must know that life is lived once no one has the right to take the life of another intentionally. It is not enough to say that one is holding a bible, the other is wielding and menacing a knife killing in a public frequented shopping marketing area. That is heinous, heedless, heartless, crime to kill in this manner without fear or any emotion. Then come here into the court and not accept responsibility outright for the crime of wilful murder committed upon Jack Juu on the 21^st September 2022 here in Minj, in broad day light in the midst of people frequently that shop.
    
16. Paul Unap Bobby of Dimil Minj, Jiwaka Province is hereby sentenced to Life years IHL in jail following the Indictment dated the 15^th July 2024 for the wilful murder of Jack Juu.
    

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