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State v Peter [2024] PGNC 384; N11058 (22 October 2024)

N11058

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 06 OF 2022

THE STATE

V

ANDY PETER

Waigani: Miviri J
2024 : 12^th & 19^th September, 3^rd, 21^st & 22^nd October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 (1) CCA – Trial – No Dispute Deceased Cut with Bush knife & Died Resulting – Wilful Murder – Trial – Retaliation Over Earlier Fists Fight – Law Into Own Hands – Rule Of Law – Alcohol & Abuse of It – Threat to Life & Limb of Other Citizens – No Respect for Public Order – Prevalent Offence – Use of A Dangerous & Offensive Weapon – Strong Deterrent Punitive Sentence.

Facts
Prisoner fought the deceased and others and was beaten up with the others. Armed himself with others cut the deceased intending to kill him and did kill him. He retaliated after being beaten up in a fist fight with the deceased over half a bottle of beer.

Held
Intention to Kill and a killing.
Retaliation after being beaten in fist fight.
Use of a dangerous & offensive weapon.
Cut to the head of the deceased.
In a public frequented area undeterred.
Prevalent offence.
Strong Deterrent & punitive sentence.

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
James v State [2020] PGSC 39; SC1937 (24 April 2020).
Kuanande, The State v [1994] PNGLR 512
Michael v The State [2004] PGSC 37; SC737 (1 April 2004).
Public Prosecutor v Don Hale [1998] SC564.
Sanawi v The State [2010] PGSC 31; SC1076 (29 September 2010).
Simbe v The State [1994] PNGLR 38
Ume v The State [2006] PGSC 9; SC836 (19 May 2006)
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).
Kovi v The State [2005] PGSC 34; SC789 (31 May 2005).
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
L. Jack & J. Siminji, for the State
K. Watakapura, for the Defendant

SENTENCE

22^nd October 2024

1. MIVIRI J: Andy Peter of Tigibi Village in Tari, Hela Province now appears for sentence for the crime of wilful Murder committed on the 06^th June 2020 at 9-mile Settlement in National Capital District where he wilfully murdered Nelson Pitu.
   
2. He was convicted after trial pursuant to Section 299 Wilful Murder, of the Criminal Code 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.
     
   • (2) A person who commits wilful murder shall be sentenced to life imprisonment and is eligible for parole after 30 years.”
     
3. He could be sentenced to the maximum of life imprisonment if his facts and circumstances are in aggregate of the worst offence of wilful murder: Avia Aihi v The State (No 3) [1982] PNGLR 92. The sentence must fit the crime committed Golu v The State [1979] PNGLR 653. He was convicted that on the 06^th June 2020 about 4.00pm, he was drinking beer with others at 9-mile Quarry Settlement in the National Capital District. Nelson Pitu the deceased and his friends, Mark Steven Wia, John Timothy, and Masket Tore after having some beer in their relative’s yard were walking down the road. They ran out of beer and so walked down the main road trying to return to Waigani University of Papua New Guinea Campus.
   
4. As they made their way out, one of the Accused’s companions confronted Nelson Pitu and his friends and demanded Masket Tore to give him the half bottle of beer he was holding. Masket Tore refused to give it to him and the Accused accomplice slapped him on the face. A fight broke out as a result and Nelson Pitu and his friends chased the accused and his relatives into their yard.
   
5. Shortly after that the Accused and his relatives returned whilst armed with bush knives, sticks, and rocks. They attacked the deceased and his friends. They started fighting again with the deceased and his friends. At this time the Accused was armed with a bush knife, and he swung it at the deceased head. Who sustained a deep cut to the head. The two groups ceased fighting when they saw the deceased was badly injured. Police also arrived at the scene and dispersed the groups and controlled the situation. The deceased was rushed to the Port Moresby General hospital and treated at the Intensive care unit (ICU) but died later from primary brain injury due to an incision wound to the head. He intended to kill him and did kill him, thus contravening section 299 (1) of Wilful murder.
   
6. When one unlawful act is followed up with another unlawful act it is very serious aggravating feature against the conduct of the prisoner. This is a case of a fight that erupted over a bottle of beer in the possession of a friend of the deceased. There really was no basis to fight over it. And even then, there was no reason for the prisoner to take part in it. Because it did not hurt anyone except the bruises and bumps as a result of the fists. Rather than be content the prisoner came back armed with the bush knife. And which was used in that manner upon the deceased without heed that it was a public frequented area on a public street. Effectively the safety security of other innocent road users was threatened with that fact. Lawlessness that spills onto public roads and properties cannot be allowed to mushroom at leisure. The rule of law must be bolded out for all to see. Other members of the public who also live in that area do not deserve lawlessness as depicted here. It is an unnecessary violent crime that is committed in the capital city of the Country Port Moresby, 49 years after independence. There is no respect for the rule of law and adherence of its dictate and prerogative. What is paramount and fast becoming the norm is tribal association and the dominance of violence in groups. Many of our towns and cities have come to a halt because of this behaviour. It will not become the rule and will be stopped with very stern punitive sentences against. When people from an ethnic area tribe converge to bring lawlessness in this way, the rule of law must prevail to quell such situations. This sentence will reflect that fact. That congregating building up in numbers to bring lawlessness in this manner will be stamped out by strong deterrent penalties against those who see fit to breach.
   
7. The prisoner fits these facts and will meet what the law designs for such behaviour. The Engans and the Tari, or the Hela are part of Papua New Guinea. Port Moresby is the capital city of the country and does not belong to one ethnic group within the country to torment and terrorize in this manner. Other peace-loving Papua New Guineans and people elsewhere are within. All must enjoy peace and lawfulness. This sentence will reflect that consumption of alcohol should not lead to further problems of lawlessness and disorder. Because the level of violence upon the deceased described that the Prisoner cut the deceased with a bush knife on the head a very venerable part of the body. The extreme nature of the injuries is independently confirmed by medical evidence, Exhibit P1 by Doctor Philip Golpak on the 12^th June 2020 at 12.40pm who affirmed that the body had significant abnormal findings which included (a) Primary Brain Injury, and (b) Incision wound to the head. And he concluded that the death was due to the Primary Brain Injury due to the Incision wound to the head. To this regard he attached the autopsy report dated 12^th June 2020.
   
8. Then there is exhibit P2 Statement of Kemos Kongga Policeman crime scene officer at the National Forensic Science Centre, who took the photographs 1, 2, and 3 of the deceased body. Photograph 4, 5, 6, and 7 showed the injuries to the head of the deceased exposed out by the postmortem operation internally. Clearly very gruesome injuries as the deceased head were split open from the top. No man will survive the impact of the assault in this manner. And the deceased was no different. He was unarmed and did not stand a chance of survival in the way that the bush knife was used on his head. Photographs 8, 9, 10, 11, 12 showed the area where the attack took place is a very public frequented area. There is no fear in the way the prisoner did what he did given. When there is determination to commit a serious criminal offence without fear of the rule of the law, the Courts have a duty to enforce the rule of law in bold. This Court will be failing in its duty if it did not take appropriate action in dishing penalty befitting the criminal conduct evidenced.
   
9. And evidence clearly establishes the criminal conduct of the prisoner. John Timothy reiterates this evidence in the defence exhibit D1, his statement tendered as prior inconsistent statement. It goes hand in hand with the evidence of Mark Steven Wia who says he boxed Andy Peter “who got a bush knife and cut Nelson Pitu. Because he lives at ID24. He was defeated in the first fight and came back armed with a bush knife tramontina long one K10.50 and swung the knife at Nelson. I was close I saw it because I faced him. He was two (2) meters and close.” He must have the penalty proportionate to his criminal conduct. His actions immediately directly caused the death of the deceased. He is the leader of the pact in the death of the deceased. And what the law prescribes must meet square with his conduct. He displays clear evidence of animosity leading up to the killing in conjunction with the others: James v State [2020] PGSC 39; SC1937 (24 April 2020). Intent is personal unto the prisoner, and maybe deduced from the totality of the evidence, Kuanande, The State v [1994] PNGLR 512. He intended to kill and did kill the deceased is the summary of the evidence against his intent. And in this regard voluntary consumption of alcohol is not an excuse nor would it derail the effect of the will of the legislature upon the prisoner.
   
10. 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).
    
11. The streets and public frequented areas are no longer safe because of the tentacles of violent crimes. And it is no exception here. The deceased was attacked in a public frequented area undeterred of that fact. Should this be any different to the home. In my view it would not be erroneous to follow the path of Public Prosecutor v Don Hale [1998] SC564, although is a case of the robbery, protection of the public street, or any other public property, frequented by people the public, as in a dwelling house with the sentence that was imposed is good law, applicable given the facts here, homicide committed within. 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 he was the leader of the pack in the attack leading to the demise of the deceased. He must be stopped with the stern deterrent sentence due given.
    
12. His own facts circumstance identifiable and apparent will determine the proportionate sentence due: Simbe v The State [1994] PNGLR 38. What are meted stems from the merits of his case, no more no less. Prisoner will be sentenced on the basis of the evidence depicting detailing out his role in the demise of the deceased. It is overt and apparent that there is no special extenuating circumstances as observed in Ume v The State [2006] PGSC 9; SC836 (19 May 2006) or as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005). The material in the presentence report ordered do not evidence, nor do they warrant for the purposes of section 19 for suspension of the sentence within Tardrew, Public Prosecutor v [1986] PNGLR 91. He was employed as a security guard and in that duties it ought to have dawned upon him that lawlessness was not warranted. It is serious and well planned when he returns with a bush knife against an unarmed person, the deceased. Sentence will be proportionate to the fact and level of planning in the offence State v Paru (No 3) [2021] PGNC 385; N9248 (3 November 2021). The role played out in the offence will draw the appropriate sentence. Parity is always due and distinct dependent: State v Pritchard [2016] PGNC 15; N6183 (12 February 2016). She was the co accused of James Paru convicted. The viciousness of a crime depicted the role that an offender plays will be singled out in the sentence: 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.
    
13. To my mind his case will fall in category four (4) by Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). It was preplanned because of the earlier fist fight. And was in direct retaliation to it with the deceased and his friends. In this respect it was preplanned in anticipation of overcoming any use of force by the opposing including the deceased. And the prisoner targeted the deceased an unarmed person with that bush knife. Who stood no chance of survival evident in the medical report and the other related evidence of the witnesses set out above. A trial was conducted establishing that the prisoner led the attack. It was well planned and well executed by the prisoner who cut the deceased on his head direct blow leading to his death. It was a very brutal killing depicted out by the medical report set out above. There really is no mitigation except that the prisoner is a first offender. Crime executed in this manner over a bottle of beer held in the hands of a friend of the deceased leading to this crime cannot be justified. What is a bottle of beer to the life of a human being. And repeated unlawful criminal actions in this regard cannot downplay the role of the prisoner. He displayed complete contempt for human life when he used the bush knife in the way evidenced.
    
14. Yes, he is a first offender aged 31 years from Tigibi village in Hela Province. He is educated to grade three (3) back in the village. His employment experience was as a security guard with Gama Security Limited. The presentence report recommended probation which is disproportionate to all set out above. There are no materials supporting to go down this path consistent with Tardrew, Public Prosecutor v [1986] PNGLR 91. What is clear is that a custodial term is appropriate given all set out above.
    
15. And in all the circumstances for the crime of wilful murder committed by Andy Peter of Tigibi village, Tari, Hela Province on the 06^th June 2020 at 9-mile Settlement National Capital District contrary to section 299 (1) of the Criminal Code upon the Indictment dated the 12^th September 2024, for wilful murder of Nelson Pitu is hereby sentenced to 40 years imprisonment in hard Labour. Time, he has spent in custody awaiting will be deducted forthwith he will serve the balance remaining in jail.
    
16. No one is above the law whether we are from Enga or Tari. Our originating place does not depict our immunity from the law. Everyone is equal before the law and will be dealt with accordingly to law. Papua New Guinea is a united nation no one should derail our unity in this way. I would be failing in my duty if I condone with a light sentence. I have a duty to ensure the full force of the law is felt by those who dare to defy the unity of this our country under our Constitution. The penalty in all the circumstances is 40 years imprisonment in hard Labour. Time in custody is deducted forthwith. He will serve the balance in jail. This is not leaps and bounds which is not a prescription under section 299 of the Code. The will of the legislature is paramount not the interpretation inscription of the courts. I adhere to that dictate and so this sentence by his facts and circumstances not without.
    
17. The sentence of the Court upon Andy Peter of Tigibi Village in Tari, Hela Province for the crime of wilful Murder committed on the 06^th June 2020 at 9-mile Settlement in National Capital District where he wilfully murdered Nelson Pitu on the indictment dated the 12^th September 2024 is, 40 years imprisonment in hard labour. Time in custody is deducted forthwith. He will serve the balance in jail forthwith.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant