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John, The State v [1992] PNGLR 524 (22 April 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 524 - The State v Waiyhake Komane John 

[1992] PNGLR 524

N1068

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WAIYAKE KOMANE, JOHN OKATE, MICHAEL KAMEL, MARCUS IMORAI, DANIEL LOUVO, MARKUS PUE, FRANCIS MARUM LAWRENCE, DENNIS MOSS, AND ALPHONSE LAPUN

Rabaul

Jalina J

7-10 April 1992

13 April 1992

22 April 1992

CRIMINAL LAW - Wilful murder (Criminal Code ss 299(1), 300(1)) - Committed in the process of armed robbery - Circumstantial evidence.

CRIMINAL LAW - Defence of accident - Onus on the prosecution to negative the defence - Proof of intention to kill.

CRIMINAL LAW - Offences committed in prosecution of common purpose - Failure to withdraw or communicate intention of withdrawal from the common purpose by a co-accused person implies acceptance of the actions of the principal offender - Criminal Code s 8.

SENTENCING - Plea for leniency based on impact of incarceration on family - Guidelines on sentencing for robbery and wilful murder - Death penalty for wilful murder - Status of -Discretionary nature of - Practical difficulties to imposition of death penalty.

UNDERLYING LAW - Wide construction of s 8 of Criminal Code necessary to give effect to the intention of Parliament.

Facts

Following a tip-off that Mr Graham McCutchen, the business manager of Sonoma Adventist College, would be taking some money to the bank in Rabaul, the 9 accused persons, armed with guns and bush knives, organised a road-block on the Sonoma/Wongawonga road and successfully robbed Mr McCutchen. During the robbery, 2 students travelling with Mr McCutchen died as a result of gunshots allegedly fired by the first accused. Each of the 9 accused persons was charged with armed robbery and wilful murder, with an alternative charge of murder. These charges were made in separate indictments. The first related to armed robbery and the second to wilful murder and murder. The issues were whether the principal accused intended to kill the deceased students or accidentally did so, and whether the co-accused persons were guilty of the same crime as the principal accused through the operation of s 8 of the Criminal Code.

Held

1.       The principal accused "intended" to kill the deceased students and, therefore, the defence of accident did not apply.

2.       The principal accused person is guilty of wilful murder.

3.       The actions of second, third and eighth accused persons did not bring them within the ambit of s 8 of the Criminal Code. They were, therefore, not guilty of wilful murder and murder. The other 5 co-accused persons were caught by s 8 of the Criminal Code and, therefore, guilty of wilful murder.

Cases Cited

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

Avia Aihi v The State (No 2) [1982] PNGLR 44.

Pawa v The State [1981] PNGLR 498.

Public Prosecutor v Sidney kerua and Billy Kerua [1985] PNGLR 85.

R v Wendo [1963] PNGLR 217.

State v Kapera (1986) unpublished N567.

State v Manda (1989) unpublished N805.

State v Pangurenge (1991) unnumbered, unpublished.

State v Warangul Elisha & Ors (Pilapila wilful murder case) unnumbered, unpublished National Court judgment, June 27, 28 and July 1, 26 1991.

State v Yaboshiwa (1990) unpublished N818.

Ure Hane v The State [1984] PNGLR 105.

William Ukukul Gimble v The State [1988-89] PNGLR 271.

Counsel

N Miviri, for the State.

E Masatt, for the accused.

22 April 1992

JALINA J: Each of the 9 accused persons has been charged with armed robbery and wilful murder, with an alternative charge of murder. These charges have been brought through 2 separate indictments. The first indictment relates to armed robbery and the second to wilful murder and murder.

There is no dispute that Mr Graham McCutchen, the business manager of Sonoma Adventist College, was stopped on the Sonoma/Wongawonga road by the 9 accused persons, who were armed with dangerous weapons such as guns and bush knives, and robbed of the properties specified in the first indictment. It is also not disputed that the robbery was the execution of a plan the accused persons had had on the basis of information a student from Sonoma had given to their leader, Waiyake Komane, that Mr McCutchen would be taking money in his white Mitsubishi sedan to the bank in Rabaul. Although I am yet to determine as a fact whether or not 2 shots were fired, there is also no dispute that the 2 deceased persons died from injuries they received to their heads as a result of a shot or shots fired by Waiyake Komane.

The charges of wilful murder and murder have been brought against Waiyake Komane pursuant to s 299 (1) and 300 (1)(b) respectively of the Criminal Code. The other 8 accused persons have been charged with the same offences through the operation of s 8 of the Criminal Code. I will return to s 8 later when I consider whether or not all or some of them are liable for the actions of Waiyake Komane, as if they committed the offence themselves.

Before going on to determine the number of shots fired, the element of "intention" to kill and the extent to which the other 8 accused might be criminally liable for Waiyake Komane's actions, it is necessary to indicate through evidence what is alleged to have happened on this fateful morning of 7 November 1991.

From the evidence before the Court, it appears that as Mr McCutchen was driving along the road near Wongawonga Plantation he was forced to stop when a log was pushed from the side of the road onto the road itself. He pulled his vehicle up on the right hand side of the road and soon thereafter he noticed about 6 or 7 youths come out of the bushes on either side wearing masks and carrying guns and bushknives. One of the youths went to the driver's side, pointed a gun at Mr McCutchen's window (which was then up) and demanded money. Although the window was up, Mr McCutchen was still able to hear the youth demanding money. Another youth went to the front left hand side, where the male student was sitting. The female student was sitting at the back seat of the vehicle. That youth demanded that the 2 students get out of the vehicle, which they did. Mr McCutchen also got out of the vehicle to go around to the back of it in order to get the money and give it to the youth; but upon realising that he could not do so due to the key still being in the ignition, he went back to the front to get the key. The youth pointing the gun at him was still demanding money.

At that point, one of the youths, not the one pointing the gun at him, went to the back of the vehicle and took a bag containing the money as well as a bag containing the mail. A 2 way radio was also taken. Mr McCutchen was facing the front of the vehicle when those things were taken.

Then the youth who was pointing the gun at him told him to go. He then turned to his side and saw the 2 students squatting down on the drain on the left hand side of the road with one of the youths pointing a gun at their heads. At this point, another youth went up to Mr McCutchen, pointed a gun at him and demanded that he give him his watch and wallet, which he did. He also gave his driving licence, some bank cards and an Air Niugini Charge Card. The robber then told him to get going, but because Mr McCutchen felt a sense of responsibility towards the students, he did not move off quickly. He noticed that one of the youths was pulling at the 2 students. Mr McCutchen demonstrated in court the girl being in the middle and being pulled by the youth and the male student pulling her in the opposite direction. The youth was pulling them across the road and Mr McCutchen's immediate reaction was that he may be going to rape the girl. Mr McCutchen was still standing there and, again, the youth who was pointing the gun at him told him to go.

Thinking that one man without protection was of little value at the scene, he turned his back to go and, in fact, took a few paces along the road away from his vehicle. When he turned his back he heard 2 shots being fired from a rifle, and when he turned around he saw the 2 students lying on the ground with gun wounds to their heads. The shots were fired almost simultaneously. He did not see any struggle between the students and the person pointing the gun at them prior to the shot being fired. There was a considerable amount of blood on the roadway. The other youths disappeared into the surrounding bush.

Mr McCutchen did not actually go near the body of the 2 students and check them as he considered it risky to do so in view of the number of youths involved and the fact that they were armed with guns and knives.

He then heard a vehicle being driven along the road from the direction he had come, so he ran towards it for assistance to return to Sonoma. As can be seen from the evidence below, that vehicle was driven by Paul Wani, with August Ani as his offsider.

Although during cross-examination Mr McCutchen agreed to the possibility of the second shot being an echo of the first shot and that, because he had his back to the students, he could not see the male student pulling the barrel of the gun, he maintained that 2 shots were fired. He was not sure whether it was after the first shot or the second shot that he turned around and saw the 2 students lying on the ground. This was because it happened very quickly. After they fell, the youths started dispersing, including the 2 youths who drove off in his vehicle. He did not see the tractor which was parked nearby although he did pass it on the way.

Before proceeding further, let me indicate at the outset that I place little weight on the evidence of Mata Niko Kiwi, Paul Wani and August Ani due to material conflicts in their evidence and the evidence of the only "eyewitness" and the State's principal witness, Mr McCutchen, and the accused Waiyake Komane in respect of the number of persons who were present with him when he fired the shot or shots.

Mr McCutchen told the Court that the person holding the gun was pulling the female student across the road from the left hand side as if to go to the right hand side while the male student was pulling the female student in the opposite direction. There were, therefore, 3 people including the person holding the gun immediately before the shot or shots were fired.

The accused Waiyake Komane, whilst he disputes that what was happening was as described by Mr McCutchen, does not dispute that he was with the 2 deceased students immediately prior to the shot or shots being fired. Paul Wani stated, however, that after he passed the Sonoma/Wongawonga sign (which the Court has noted is on the left hand side of the right hand corner in the direction of Rabaul), he heard a person by the name of "Roy" who was inside the bush on the side of the road call out "rascal", but he did not stop. He kept on driving and stopped his vehicle about 100 yards (about 91.44 meters) away from the tractor. From the evidence of Mata Niko Kiwi, it appears that the tractor stopped 15 meters behind the white vehicle. He said he saw a man holding a gun fire and smoke come out of the barrel of the gun. He also saw a man fall down to the ground and dust arise. He denied seeing the man who fell down pull the barrel of the gun. The distance between the man holding the gun and the victim was about 1 meter. He heard only 1 shot.

When asked by the Court as well as the State Prosecutor, Mr Miviri, (during evidence in chief) as to whether he saw anybody else apart from the man who fired the gun and the victim, his reply was in the negative.

From the Court's view of the scene, it appears that the Sonoma/Wongawonga sign cannot be seen clearly from the scene of the shooting. If Mr Wani did not stop at the Sonoma/Wongawonga sign but continued driving and stopped 100 yards (about 91.44 meters) behind the tractor as he said, then he would have had a full view of the scene and, thus, been able to see not only that there were 2 others persons on the left hand side of the road with a man pointing a gun at them but there were other youths milling or standing around, in view of the other accused's statement in the record of interview that, after the log was pushed out, they all went out to the road.

Furthermore, in view of Mr McCutchen's evidence that the person who pointed the gun and told him to go prior to the shooting was not the one pointing the gun at the 2 students coupled with the accused Waiyake Komane's admission that he was the one with the students and that it was the shot from his gun that caused the death of the deceaseds, the description by Paul Wani of Waiyake Komane as the person who pointed the gun at the white man and followed him to the car but ran away after he saw them could not possibly be correct.

Like his colleague and boss, Paul Wani, August Ani, who was sitting in the front with Paul Wani, stated in his evidence in chief that, when they came past the Sonoma/Wongawonga sign board, they saw a man standing by himself and he appeared to be carrying something like a gun. There were no other people standing close to where this man was standing. He saw this man fire the gun but he saw only one person fall down. The gun was fired once only. After firing the gun, he followed the European man who was going towards them. He had his gun pointed at the European man. This man saw them and ran away. August Ani recognised him as Waiyake Komane by the way he walked and ran. He walked and ran with a limp due to injuries he had sustained when he fell from a tree.

For reasons I have given in relation to Paul Wani's evidence, I place little weight on August Ani's evidence as well.

With respect, it seems to me that whilst both Paul Wani and August Ani were there, as they no doubt assisted Mr McCutchen back to Sonoma, they have tried to reconstruct their evidence out of stories they heard from others about what actually did or may have happened. This is not surprising because Mr McCutchen did not hear any car coming until after the students had been shot. That car was the one driven by Paul Wani. It was Paul Wani who took Mr McCutchen to Sonoma.

In the light of the evidence of Mr McCutchen as to there being more than 2 persons at the scene soon after the log was pushed onto the road, including his evidence that a man pointing the gun was with the deceased students, coupled with Waiyake Komane's evidence that he was with the 2 deceased students and pointing the gun at them, Mr Mata Niko Kiwi's evidence of seeing the 2 students and the white man come out of the car and of not seeing a man pointing a gun at them but, instead, seeing a man pointing a gun at him, cannot be relied upon. It is also unreliable as Mr. McCutchen has denied seeing a tractor parked behind his car. It is surprising in view of the evidence of Paul Wani and August Ani that they stopped about 100 yards behind the tractor and yet Mr McCutchen did not notice something big such as the tractor parked behind his car. According to Mr McCutchen, the first vehicle that came along was Mr Wani's vehicle, and that was after the students had been shot. Bearing in mind that there is a slight right hand corner between the Sonoma/Wongawonga sign and the place where Mr McCutchen's car stopped, Mr McCutchen could not possibly have seen the tractor from where he stopped his car, but he certainly would have seen it when he was going to meet the vehicle that came, the one driven by Paul Wani.

Between 9 and 10 o'clock on the morning of the offence, the witness, Terence Hetty, who was a student at Sonoma Adventist College last year, was travelling towards Sonoma in an open back utility and was seated at the back. After the vehicle turned the junction into Sonoma road and was approaching a corner, he heard something like gun shots. When they drove further up towards the bend/corner, he saw the white vehicle which belonged to the business manager at Sonoma travelling at high speed towards them and creating a lot of dust. He heard the shots before the vehicle passed them at high speed. About 30 meters after they passed it, they were stopped by young boys standing in the middle of the road; and when he stood up to investigate, he saw the backs of 3 people just walking into the bush. He could not see if they were armed. Another man was standing in the middle of the road. This man pointed the gun at them without saying anything, and he indicated to them to turn back. Mr Hetty saw two people lying on the ground and they were shaking. He likened the shaking to a chicken moving after its head had been chopped off.

In his statement to the police, which has been tendered by defence counsel as a prior inconsistent statement, Mr Hetty said that he heard a loud bang as opposed to "shots", which he indicated on oath in this Court. I will discuss later the question relating to the number of shots that were or may have been fired at the time.

The statements of Blasius and Anita Pelap, Nane Kera, Daniel Raita and Vincent Kapean, which were tendered by consent, are not relevant to the issue before this Court but relate more to the issue of identity of the persons who were involved, which is not in dispute.

Medical reports of Dr Kurapa on both deceased persons were tendered by consent. The main body of the medical report pertaining to the deceased Margaret Mavao is as follows:

"HISTORY

The deceased was allegedly shot with a gun and killed at road block on the road between Vunapope and Sonoma on 7/11/91 between 9am and 12.30pm. She was alleged to have lost considerable amount of blood at accident sit (sic). A Kerema male student was said to have been killed in the same incident as the deceased.

EXTERNAL EXAMINATION

The deceased was a Tolai female in early twenties physically well built wearing brown hair. She appeared nulliparas. She weighed about 70 - 80kgs and stood about 160 - 170 cms high. Her mucus membranes on conjunctiva and buccal mucosa showed marked paleness.

The body was wrapped in a white and striped sheets that showed extensive blood stains specifically around the head.

A large ragged gaping scalp compound wound about 10 - 15cms in diameter was noted at the base of the skull to the left of mid-line over the occipital area. White brain paste like matter was noted to be present on surrounding hair around the wound. Lots of bone fragments was also felt in the wound.

The bony skull (occiput area) under the wound showed a similar size defect tracking anteriorly and in slightly downward direction. The dura underneath the skull was also noted to be extensively torn.

There was no depression of the skull bones surrounding the wound defect.

INTERNAL EXAMINATION (SKULL)

The skull showed radial fractures extending from the occipit transversely to the (1) temporal area posteriorly to (R) side horizontally. Extensive bony spicules were lodged in the brain.

The dura was torn in a similar fashion underneath the bony defect. There was extensive homogeneous subdural haematoma over both the (R) and (L) cerebral haemispheres and the lobes of the cerebellum. The tract of the defect extended to (L) temporal lobe and slightly downwards to the (L) cerebellum lobe as well a lead pellet was found to be lodged in the (L) lobe of cerebellum.

The basilar artery was noted to be torn in the tract as well.

Other systems were not examined during the autopsy.

CONCLUSION

The deceased died as a result of the injury she received causing gross bleeding over the brain, significant brain tissue damage and extensive acute blood loss."

In his oral evidence, Dr Kurapa described the bullet as having gone in horizontally (i.e. straight).

The photograph (Exh. F8) shows the point of exit of the bullet as being the area midway between the center of the head and the left ear. It also shows brain matter outside, as described by the doctor. Other matters the doctor told the Court of are as contained in the above report.

The main body of the medical report pertaining to the deceased Reddy Kovah is as follows:

"HISTORY

The deceased was allegedly shot with a gun and killed at road block on the road between Vunapope and Sonoma on the 7/11/91 between 8am and 12.30pm. He was alleged to have lost considerable amount of blood at the site of the incident. A Tolai lass was said to have died at this same incident.

EXTERNAL EXAMINATION

The deceased was Melanesian male in early twenties spotting a black beard of moderate growth and weighing about 65 - 75 kgs and standing at 165 - 175 cms. He showed marked paleness of mucous membranes. Blood (old) oozed from the (R) nostril.

He was wrapped up in white sheet which showed extensive blood stains over the head. He had four puncture wounds on the head and face. The puncture wounds (2) over the (R) temporal area at the (R) tempora-parietal area measured 2 - 4cms in diameter and was about 6 - 8cms apart. The wounds tracked through the scalp, the skull, the dura and tracking into the brain horizontally in slightly downward angle to the left ear. Brain matter tooth pasted out of the two puncture holes. It felt extensively hollow at the base of the holes in the brain. There were no depressions of the bone surrounding holes. Bony fragments felt in brain tissue substance. The bony edge at the base of the wound was rough and were several fractures in the connecting skull bones between the two holes making it feel mobile. There was no evidence of bones on the hair or scalp.

Two other puncture wounds were noted over the (R) maxillary area sizes of about 1 - 2 cms. The right maxillar bone felt as if it was fractured.

INTERNAL EXAMINATION (SKULL)

The skull bone showed linear fractures connecting the two holes in (R) temporal areas and also extending to the occipital area and the frontal area and to the midline.

There was an extensive sub-aponeurotic haematoma was large under the scalp over (R) side of the skull. The dura was torn extensively over large area (6 - 8cm in diameter) under the two holes. The brain beneath the torn dura was soft paste with fragments of bones stuck in the brain tissue. Three lead pellets were found lodged in the brain tissue. The brain tissue was damaged under the same area of damaged dura and the track through the (R) temporal lobe into the midbrain across the midline exiting in (L) temporal lobe tearing the dura on the (L) side. The diameter of the tract in the brain was about 2 - 3 cms.

CONCLUSION

The deceased died as a result of the injury he received. And it was due to extensive brain damage and blood loss."

In his oral evidence, Dr Kurapa confirmed that the deceased Reddy Kovah had 4 puncture wounds on the head and face. Two wounds were on the right side. The entry points were small (2 - 4 cms) and were 6 - 8cms apart and broke the skull as well as the surrounding bones. The 2 tracks started down the right ear and went at an oblique angle and stopped short of the left ear. In other words, it did not exit near the left ear. Three lead pellets were found.

In answer to questions during cross-examination regarding whether or not he considered the shot to be at a close range to fracture the skull, Dr Kurapa said that the skull bone is very strong, and for a pellet to crack the skull bone the pellets would have been from a gun fired at very close range. This would also apply to the fracture of the skull of the deceased female student. The gun would have been fired at her at a close range as well.

A record of interview with each accused together with an English translation were also tendered by the State Prosecutor by consent of defence counsel. I will discuss them later when I consider the case against each accused.

After the close of the case for the State, only the accused Waiyake Komane and Dennis Moss elected to give sworn evidence. The other 7 accused persons elected to remain silent, which is their right so to do. The effect of silence is that the prosecution is not given an opportunity to test the accused through cross-examination, with the result that the Court would never know the accused persons' version of what had happened; but since the burden of proof rests with the prosecution from beginning to end, an accused person is not obliged to say anything. It is well established in this jurisdiction that silence does not imply guilt. Guilt must be determined upon consideration of all the evidence as well as other materials put before the Court during trial.

The accused Waiyake Komane's evidence is that, after the vehicle was stopped, he was standing at the back of the vehicle. Other youths among his group ordered the 2 students out. He was armed with a shotgun and 3 cartridges. He ordered the students to sit down on the right hand side of the road, which they did. He then told them to stand up, which they again did, and he told them to go into the bush, but they did not go. The students were about 2 meters away from him when he was telling them to do the things I have described above. The male student was standing closest to him.

When the 2 students did not go into the bush when he told them to, he signalled to them to go into the bush, and yet they did not go. Mr Komane became upset at the students failure to go into the bush, and the male student got hold of the barrel of the gun unexpectedly. A struggle ensued whereby the male student and he were pulling the barrel of the gun. As his finger was still on the trigger, it went off when the butt of the gun hit his ribs. The gun went off once only, and he saw both students fall to the ground. He then ran into the bush on the right hand side of the road.

Mr Komane went on to say that the white vehicle had taken off before he fired the gun. He did not know the persons who had jumped in the vehicle and driven off. His evidence in chief was, therefore, consistent with the answer he gave in his record of interview.

On cross-examination, Mr Komane stated that he did not load the gun prior to the vehicle being stopped. He loaded the gun to scare the white man when he tried to reverse the car. He conceded that the students were unarmed when he told them to sit down and then stand up again. When asked whether it was not enough to let them continue sitting down at the place they first sat down when ordered by him, he replied that the place they were sitting down was a road leading to the bush, so he told them to stand up so that he could run away through that road into the bush. He did not want to run into the bush on the other side because his house was there and people might suspect him.

Apart from some answers which did not make sense, Mr Komane maintained that only 1 shot was fired, that it was fired after the white vehicle had taken off and that it was fired as a result of a struggle between the male student and himself and, as such, he did not intend to kill the students.

After the State Prosecutor and defence counsel had questioned the accused Waiyake Komane, a re-enactment of what took place at the scene was required of the accused by the Court. This was to enable the Court to determine whether the version given by Mr McCutchen or the accused should be believed. This was after the shotgun which the accused admitted to using as well as the accused himself were checked/searched by a correctional officer upon request of the Court.

From his demonstration, which I observed very carefully, it appeared that prior to the barrel of the gun being allegedly grabbed by the male student, the 2 students were squatting down - the female student on the accused's right hand side and the male student on his left. The accused was holding the gun in his right hand with a finger on the trigger. When they refused to comply with his directions to move into the bush, he walked past the female student towards the male student. He still had the gun in his right hand as well as his finger on the trigger. His right hand was fully stretched down his side and the barrel was pointing to the ground. When he was close to the male student after passing the female student, the male student grabbed the barrel of the gun and stood up. The accused was sitting down and pulled the butt of the gun causing the barrel to point at the stomach and hip area of the male student. This caused the accused to pull the trigger at the male student. I will analyse this demonstration later, when I consider the question of "intention" to kill.

The evidence of the accused Dennis Moss was short. He gave evidence of being present when the vehicle stopped. After the robbery, Francis and Lapun took off in the vehicle and 5 of the robbers ran into the bush. Later, they heard a gun shot while they were inside the bush. In the afternoon, they heard stories from the people in the village about the death of the 2 students. On cross-examination, Mr Moss agreed that if they had not committed the robbery the students would not have died.

In accordance with normal procedure, the defence, having called evidence, made its submissions first, followed by a reply by the prosecution.

SUBMISSIONS FOR THE DEFENCE

Mr Masatt, counsel for the 9 accused persons, made basic submissions which were based on 2 issues, namely, who was responsible for the deaths and whether that person "intended" to kill.

As regards the first issue, Mr Masatt submitted that it was clear that the accused Waiyake Komane was responsible. He acted on his own.

Whilst I am yet to determine whether or not any one or all of the other 8 accused persons are liable for the actions of the accused Waiyake Komane, which issue I propose to address after I have considered the issue of whether or not the accused Waiyake Komane "intended" to kill the deceased students, there is no dispute, as I have indicated earlier in this judgment, that the deceased students died from injuries they received as a result of a shot or shots fired from the gun that Waiyake Komane had at the time. There is no suggestion by anyone - not even by the accused Waiyake Komane himself - that one or both deceased persons died as a result of a shot or shots fired by someone else.

The real issue under this head relates to the number of shots the accused Waiyake Komane is alleged to have fired. Mr Masatt has addressed this issue in his submission on the issue of "intention" to kill.

Whilst I may not necessarily accept the basis of his submission relating to the element of "intention" to kill, I do accept such a submission in relation to the number of shots that may have been fired, and that is that Mr McCutchen was mistaken when he said he heard 2 shots in light of his agreement during cross-examination that the second shot could have been an echo of the first shot. This was because the shotgun was not a self-loading gun but a single barrel shotgun. For the accused Waiyake Komane to have fired a second shot, he would have had to reload his gun, which would have taken some time, thus giving Mr McCutchen enough time to observe what happened at the time. Here, it happened very quickly; and before Mr McCutchen realised, the 2 students were lying dead on the roadway with a considerable amount of blood flowing from their heads. I, therefore, find as a fact that the 2 students died from a single shot fired from the gun that the accused Waiyake Komane had at the time. Whether or not it was as a result of a struggle and, therefore, accidental is yet to be determined in relation to the element of "intention" to kill.

DEFENCE SUBMISSION ON THE ELEMENT OF "INTENTION" TO KILL

Mr Masatt's first submission on this element was that there was no evidence of intention to kill since the accused persons went out to rob on the basis of information they had received from the student from Okapa that Mr McCutchen would be carrying money.

He further submitted that this Court should accept the accused Waiyake Komane's evidence about the male student grabbing the barrel of the gun, which caused the bullet which was originally intended to only scare Mr McCutchen, to go off. This was because Mr McCutchen was still alive, as the accused allowed him to walk away. Being the business manager, Mr McCutchen would have been the first to have been killed had the accused had the intention to kill. Furthermore, Mr Masatt submitted there was no reason to kill the 2 students and, as such, there was no intention to kill.

Mr Masatt's other submission on the issue of intention was based on the gun itself. He submitted that the gun was a single-barrel shotgun and not a self-loading rifle. If he intended to kill, he would have shot one student first, re-loaded and shot the other student. Instead, both students were killed from the single shot, which was accidental. What had occurred was consistent with what the accused had told the police in the record of interview.

As regards the injuries, Mr Masatt submitted that there was a deficiency in the State's case. He submitted that, this being a serious case, there should have been evidence from a ballistics expert to show the impact of the shot. A ballistics expert would have stated whether it was the pellets from the same bullet. It was not put to the accused Waiyake Komane that there were 2 shots fired.

Mr Masatt submitted in closing that the only reason the 2 students died was because the accused Waiyake Komane had a loaded gun, it having been loaded whilst Mr McCutchen was present and the only reason it was discharged was that it was an accident. If Mr Komane had something other than a gun and there was a struggle, the 2 students would not have died. Consequently, in the circumstances, Mr Masatt submitted that the accused should only be convicted of manslaughter.

PROSECUTION SUBMISSION ON THE ELEMENT OF "INTENTION" TO KILL

Mr Miviri, counsel for the State, submitted at the outset that the accused Waiyake Komane, at the time he fired the shot, had the intention to kill the 2 students. He submitted that the Court should infer such an intention from the circumstances.

Mr Miviri submitted that Mr Komane has explained in his evidence that he wanted them to move out of the way so that he could effect his escape. That contention, Mr Miviri submitted, cannot be upheld because he was out in the open and there were plenty of space with bush on either side of this remote stretch of road for him to escape. This was not as if he was in a house where there was only one door so that he could be justified in killing the person blocking the door in order to effect his escape.

He submitted that what happened was as stated in Mr McCutchen's evidence, and that was that there was a struggle, with Mr Komane pulling the female student across the road one way and the male student pulling the female student the other way. The female student was closer to Mr Komane than the male student, as is evident from the extensive injuries she had sustained. She received the full impact of the blast while the male student did not receive the full impact of the shot in view of the distance that he was. This, Mr Mirivi submitted, was clear from the demonstration by the accused Waiyake Komane when giving evidence.

Mr Miviri further submitted that Mr Komane intended to kill the students because there was no reason for him to have fired the shot. The students were unarmed. They were no threat to him. There was no need for the accused to approach them a second time and signal to them to move. As regards the claim by the accused that the male student grabbed the barrel of the gun, Mr Miviri submitted that the male student did not grab the barrel. It would have been stupid for a unarmed person to confront a person with a loaded gun.

He submitted that, in the circumstances, it was safe for the Court to infer that the accused Waiyake Komane fired the shot at the 2 students and that he intended to kill them.

If the court was not satisfied as to intention to kill, he submitted that the accused should be convicted of murder as an alternative verdict in view of the accused's action in being present and pointing the gun, a loaded gun, in the circumstance when he should have known that a loaded gun was dangerous, and that the deceased were killed when the accused and others went there to rob, which was an unlawful purpose.

NATURE OF THE CASE AGAINST THE ACCUSED

Although not pointed out by either counsel during submission, the case against the accused is circumstantial. I must exercise great care in such cases, and I am aware that any inference I draw must be tested against the exclusion of any reasonable hypothesis that would indicate innocence. I warn myself of the dangers of convicting on circumstancial evidence.

The law relating to circumstantial evidence are as contained in the Supreme Court decision of Pawa v the State [1981] PNGLR 498 at 501, where Andrew J said:

"I am in agreement with Miles J in The State v Tom Morris [1981] PNGLR 493 at p 495 when he said:

'I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p 117):

'When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than guilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense'."

This was applied by Wilson J in The State v Kapera (1986) N567, by Hinchliffe J in The State v Manda (1989) N805 and by me in The State v Yaboshiwa (1990) N818.

It appears from those decisions that these principles are well settled in Papua New Guinea.

DECISION ON THE ELEMENT OF "INTENTION" TO KILL

I have considered the submissions in respect of the element of "intention" to kill, and I must say, first of all, that I accept Mr Masatt's submission that because a student from Okapa gave information that Mr McCutchen would be carrying money and that the intention was to rob and not to kill the students, as the accused did not know that the students would be travelling in that vehicle, they did not intend to kill. That, however, did not mean that an intention to kill could not be formed later, if and when circumstances permitted such an intent.

In regard to Mr Masatt's submission that there was no intention to kill in view of the accused Waiyake Komane sparing Mr McCutchen's life, and the reason the students were killed was due to the shotgun being fired when the male student grabbed the barrel of the gun, I do not think that I can accept such a submission. The reason why the accused Waiyake Komane allowed Mr McCutchen to go is something that no one would ever know. It is something that he personally had knowledge of.

In regard to his submission based on the gun being a single-barrel shotgun and not a self-loading rifle such that, if he intended to kill, he would have shot one student first, re-loaded and then shot the other student, I do not think that I can accept that submission for the simple reason that they were both killed from a single shot. They were both dead. There was no need for him to re-load the gun and fire a second time.

As regards his submission that the Court should accept the accused Waiyake Komane's evidence and find that the shot was fired accidentally due to the male student grabbing the barrel of the gun, the rule regarding the defence of accident is clear. That rule is that, where such a defence is raised, the onus is on the prosecution to negative that defence.

Has the defence of accident been made out? To determine whether it was accidental and not intentional, it is necessary to consider whether or not the injuries found by Dr Kurapa are consistent with the accused Waiyake Komane's demonstration of the incident before he ended his evidence, and in this respect, it should be noted that I have described the demonstration earlier in this judgment.

From my analysis of the accused Waiyake Komane's demonstration, it is interesting to note that the barrel pointed downwards when the male student allegedly grabbed the barrel. The accused then grabbed the butt, thus causing the barrel to point upwards and in the direction of the hip and stomach area of the male student. It did not point to his head while the accused was sitting down and pulling the butt of the gun and the male student was standing up and pulling the barrel of the gun while the female student was still squatting down where she orginally was. It appeared that, if the gun went off in that position, it was impossible for the male student to sustain injuries to his head. It would not have been possible for a shot fired upwards to have hit the female student in the head let alone the way the bullet entered her body as described by Dr Kurapa. It certainly would have been almost impossible for the female student to sustain the extensive injuries she has been found by Dr Kurapa to have sustained. At the very least, the male student would have sustained injuries to parts of the body other than his head and, therefore, not died. At the very least, the female student would have only received wounds from pellets.

As there is no dispute that the students died from injuries they sustained from a shot fired from the gun that the accused Waiyake Komane had, I do not think that it is necessary to call a ballistics expert to determine whether the pellets found in their respective heads were from the bullet fired from Mr Komane's gun. I also do not think it necessary under these circumstances to call a ballistics expert to determine the direction the pellets travelled.

When I considered the injuries sustained by the deceased students, I noted that, according to Dr Kurapa, the bullet entered the deceased Margaret Mavao's head from the front and travelled horizontally and its point of exit was midway between the centre line and the left ear. The skull was torn off, thus causing the brain matter to be on either side of the hair near the wound (see photograph in Exh F8).

The injuries sustained by the deceased Reddy Kovah is clearly shown in the photograph in Exh F2. That photograph shows the 3 points of entry, all of which are on the right hand side of his head. The first entry point is near the right eye and the other 2 entry points are above his right ear.

When those injuries are considered in light of the demonstration by the accused, which I must again say I observed very carefully, it is inconceivable that the accused, in the course of a struggle whilst sitting down and the deceased Reddy Kovah was standing up and the barrel pointing to the hip and stomach area, would have accidentally shot Reddy on the right hand side of his head, with pellets extensively damaging Margaret Mavoa's head. The demonstration showed her to be away from the direction the barrel was pointing. For 2 people standing apart to be shot in the same part of the body, namely the head, with such drastic consequences would have been inconceivable, let alone impossible.

From my visualisation of the injury in light of the evidence from Mr McCutchen that the gunman was pulling the female student one way and the male student pulling her the other way, coupled with Mr Komane's evidence that, when they refused to move after he ordered them, he became angry, it appears that the injuries are consistent with the evidence from Mr McCutchen of the female student being pulled across the road, the male student pulling her the other way. I, therefore, find that the female student was more or less facing the accused and the male student standing sideways to enable him to pull the female student away from the accused. The accused then became angry and shot the female through the front of her face. The bullet went out through the back of her head and the pellets entered at four different points on the right hand side of the male student's head as he was standing sideways. The impact of the shot was greater on the female student, as can be seen from the extent of the injuries, and not so great on the male student, as the pellets fell short of exiting near his left ear.

Applying the principles of logic and common sense, as stated in Tom Morris's case (supra), I can come to no other reasonable hypotheses than one of guilt of the accused. I find, as a fact, that what has happened is as I have just described above. The death of the 2 students was not by accident. The evidence the accused has given, which was consistent with what he told the police in the record of interview, was a mere exculpatory statement intended by him to cover up what actually happened. I find that the prosecution has negatived the defence of accident. I, accordingly, find the accused Waiyake Komane guilty of wilful murder. Having found him guilty of wilful murder, it is not necessary for me to return a verdict on the murder charge.

ARE THE OTHER 8 ACCUSEDS CAUGHT BY S 8 OF THE CRIMINAL CODE?

Section 8 of the Criminal Code Act Ch 262 provides:

"8.      Offences committed in prosecution of common purpose

Where:

(a)      two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b)      in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence."

To determine whether or not they were present at the time of the shooting, it is necessary to consider the evidence of the prosecution, including each accused person's record of interview. Having placed little weight on the evidence of Paul Wani, August Ani, Mata Niko Kiwi, the only State witnesses whose evidence would be relevant would be Mr McCutchen and Mr Hetty. Mr McCutchen stated that, after the shooting, the robbers appeared to be dispersing, which meant that they were all there until after the shooting. He also stated that the vehicle did not take off until after the shooting.

Mr Hetty heard a shot when the vehicle he was travelling in was turning the junction into Sonoma road; and when they were about to reach the corner where the incident took place, he saw the white vehicle which belonged to the business manager at Sonoma being driven towards them at high speed and creating a lot of dust. When they arrived at the corner, he saw a man standing on the road with a gun pointed at their car and he also saw the backs of 3 people disappearing into the bush.

The person standing on the road when Mr Hetty saw him was no doubt the accused Waiyake Komane. Dennis Moss, who had the home made gun, has given evidence to the effect that he ran away to the bush after getting the money. There is no suggestion by the accused Waiyake Komane that someone else was there.

Mr Masatt for the defence has submitted, relying on my decision last year in State v Pangurenge and Taloh, an unreported judgment dated 9 July 1991, that mere presence was not enough to make one caught by s 8 of the Criminal Code. He has also relied on R v Wendo [1963] PNGLR 217. He submitted that Mr McCutchen's evidence that before the shot was fired the others did not appear to be interfering with the 2 students as well as Mr McCutchen's evidence that the others appeared to be dispersing when he looked sideways in the direction of the students, are consistent with their respective statements to the police in the Record of Interview. Consequently, they cannot be caught by s 8. If the court found that all or some of them were present, then it is not enough in view of the lack of evidence of them taking an active part in the shooting.

Mr Miviri has submitted relying on the discussions of s 8 in Chalmers, Weisbrot and Andrew's, Criminal Law and Practice of Papua New Guinea (Sydney: Law Book Co Ltd 1985), that for a person to avoid being caught by s 8 he must not only have withdrawn from the common purpose but must have communicated to the other accused persons his intention to withdraw from the common purpose. In this case, he submitted, they did not withdraw until after the shooting. The vehicle did not take off until after the shooting. Mr Hetty saw 3 people moving off into the bush when he arrived at the scene after the shooting. They had embarked on a common purpose to rob, which was an unlawful purpose. In the course of the robbery, the 2 students were killed and, as such, the 8 accused persons are caught by s 8 and are, therefore, guilty of wilful murder.

As I have indicated earlier, apart from the accused Dennis Moss, who gave sworn evidence, the others have opted to remain silent. Silence does not imply participation in the common purpose but, in view of the need for withdrawal from the common purpose to be communicated to the other co-accused persons, silence may for purpose of s 8, depending on the circumstances, imply acceptance of the actions of a co-accused in the prosecution of a common purpose. To determine whether or not 1 or all of the 8 accused persons did in fact withdraw from the scene after the robbery, I propose to consider each accused person's record of interview.

THE ACCUSED DENNIS MOSS

He told the police at page 2 of the record of interview that Waiyake and Marcus were on the road with the 2 students and that he had gone off. Francis and Lapun took the car when he was still on the road.

THE ACCUSED JOHN OKATE

On page 3 of the record of interview, he said that they took the money and ran away. He then heard a gun shot. He ran away with Daniel after Daniel got the money. Francis and Lapun had taken off in the car when they heard the shot while they were inside the bush. He further said that they only wanted the money. They did not know what Waiyake had in mind.

THE ACCUSED DANIEL LOUVO

This accused stated in his answer to question 58 of the record of interview that he received the money from the white man. In his answer to question 61, he said that he got the money and ran into the bush and later he heard the shot, but when it was put to him in question 62 that he had earlier stated that he ran away after Waiyake shot the man and he fell, he agreed that it was true and that he had forgotten when he answered the earlier question. He was, however, inside the bush and, therefore, did not see whether it was a male or female who fell down.

THE ACCUSED FRANCIS MARUM LAWRENCE

In answer to question 37, he stated that when he took off in the car he did not hear the gun shot. It was later in the village that he was told about the death of the students, and he thought it must have been Waiyake who shot them because Waiyake had the gun.

In his answer to question 46, he basically mentions what he said in his answer to question 37.

THE ACCUSED ALPHONSE LAPUN

This accused went with the accused Francis Marum Lawrence. His statement to the police through his record of interview is similar to that of Francis Marum Lawrence. In other words, he had taken off in the vehicle before the shooting.

THE ACCUSED MARKUS PUE

This accused has given a somewhat detailed description of what happened through his answer to question 39 and question 48 of the record of interview, which is, of course, different from what the accused Waiyake Komane said in his evidence. This description appears to be consistent with the evidence of Mr McCutchen of the female student being pulled across the road and the male student pulling her in the opposite direction. This accused was no doubt present at the scene prior to the shooting of the 2 students.

THE ACCUSED MARCUS IMORAI

In his answer to questions on page 2 of the record of interview, Mr Imorai said that after they got the money they ran away, but later on he said that he was telling lies that he ran into the bush. He was with Waiyake on the road when the others ran into the bush. He said that while they were there the male student tried to fight Waiyake, trying to get the gun from him but Waiyake was too strong and turned and shot both of them with the gun. Waiyake fired one shot and Mr Imorai was close to him. He saw both students fall to the ground. He became frightened and ran away, leaving Waiyake on the road. Waiyake did not run away. Mr Imorai denied seeing which part of the body Waiyake shot them. He also stated that the teacher was close to them when the students fell down.

THE ACCUSED MICHAEL KAMEL

He ran away into the bush after they got the money. He heard one shot whilst he was in the bush.

DECISION ON WHETHER THE 8 ACCUSED PERSONS ARE CAUGHT BY S 8 OF THE CRIMINAL CODE

I have considered the statement of each accused as contained in his respective record of interview and find at the outset that the accused persons John Okate, Michael Kamel and Dennis Moss had run away into the bush after the money and other things were stolen from Mr McCutchen. They were not present at the time of the shooting of the 2 students. I am not satisfied that the extent of their action was such as to bring them within the ambit of s 8 of the Criminal Code. I, accordingly, find them not guilty of both wilful murder and murder.

With respect to the accused Marcus Imorai, Daniel Louvo, Markus Pue, Francis Marum Lawrence and Alphonse Lapun, I find from their respective statements through the record of interview that they were present until after the 2 students had been shot by Waiyake Komane.

The accused Markus Pue gave an account of what happened through his answers to questions 39 and 48 of the record of interview, which is consistent with Mr McCutchen's evidence regarding the female student being pulled by the gunman. There was no way he could have given such a consistent story had he not been present.

The accused Marcus Imorai gave an account which is only part of the version given by the accused Waiyake Komane. Like the accused Markus Pue, Marcus Imorai was there. Otherwise, he would not have given such a story.

The same applies to the accused Michael Louvo. He only left after the shot had been fired and a student fell down.

The sighting of 3 people walking into the bush when the utility that the witness Terrence Hetty was on arrived is consistent with their statement of being present until after the shooting. The fact that they were not identified by names is not relevant for purpose of s 8 in these circumstances.

I do not accept the statement by Francis Marum Lawrence and Alphonse Lapun that they took off before the shot was fired. Terence Hetty saw the vehicle after he heard the shot. Mr McCutchen gave evidence that the vehicle took off as soon as the students fell down. I cannot imagine why they had to remain at the scene when the money they went to steal had, in fact, been taken from the car and carried into the bush. Normally, one would expect all the robbers to be together to share the fruits of their illegal act. The others who took the money were not from their own village so that they could trust them to give them their share later. The only rational inference I can draw from the circumstances is that they stayed behind to see what Waiyake Komane would do to the students. When he shot them, they became scared and fled by the fastest way available, namely by car. Waiyake Komane was armed with a loaded gun which, at that stage, became a deadly weapon. The students were innocent. They were not armed. These accused persons, by not taking steps to prevent or convince Mr Waiyake Komane not to do what he did, had encouraged him by their presence and silence. If they were against it, not one of them has said so. I am satisfied beyond reasonable doubt that the accused Francis Marum Lawrence, Alphonse Lapun, Daniel Louvo, Marcus Imorai and Marcus Pue are caught by s 8 of the Criminal Code and, as such, I find them guilty of wilful murder. There is no need to return a verdict on the charge of murder.

I have given a very wide construction to the provisions of s 8 of the Criminal Code in view of the prevailing law and order situation in this country. Offences such as armed robberies are committed by groups of armed youths and grown up men who, on occasions, have not hesitated to kill or injure innocent people under circumstances which did not justify any killing or injury, as has happened in this case.

In my respectful view, it is the duty of the courts to develop the principles of the underlying law so as to give effect to the intention of Parliament when it passed s 8 into law. By doing so, the courts would give effect to the wishes and aspirations of the majority of our people to control or reduce crime. It is by wide construction of the legal provisions, when the need arises, that the judicial arm of government would assist the legislative and executive arms of government in their effort to control criminal activities such as armed robberies in this country and make co-offenders realise that it does not pay to form gangs and commit serious crimes together.

28 April 1992

SENTENCE

In considering the appropriate sentence I should impose on the second, third and eight accuseds, viz, John Okate, Michael Kamel and Denis Moss, for robbery and on the accuseds, Waiyake Komane, Marcus Imorai, Daniel Louvo, Markus Pue, Francis Lawrence Marum and Alphonse Lapun Raphael, for robbery as well as wilful murder, I have taken into account the following:

(i)       each accused's statement on the allocutus, including his expression of remorse;

(ii)      his educational standard, which I might mention is not high;

(iii)     his family background;

(iv)     his employment experience as well as what his lawyer has submitted on his behalf, including the fact that some of the goods and money have been recovered.

In regard to their request to be placed on good behaviour bond or on probation I must indicate at the outset that I do not propose to accede to their request. When the total value of the cash and goods are large coupled with the fact that the lives of two young people have been lost, I do not consider a release on probation or on good behaviour bond with or without suspension of part of the sentences as appropriate.

In regard to their plea for leniency on the basis that their imprisonment would adversely affect their respective families one way or another, I consider that the Courts must treat requests on that basis with caution. It seems to me to be a popular excuse. It was raised in a lot of cases I have heard and, no doubt, in cases heard by other judges as well. The accuseds here have planned and have then gone out to commit a serious crime, a crime which they no doubt knew may result in them being jailed for a long time. The welfare of their loved one's should have been taken into account before they embarked on their journey of crime. In the circumstances of this case I reject their plea for leniency based on the impact on their families.

In regard to their request that I make an order for their transfer to the Corrective Institution in their respective provinces to serve their sentences for reason that they may be mistreated, as I am mindful of the possibility of them escaping, I decline to make an order at this stage. If they are placed in a way that will cause danger to their lives, then it would be open to them to apply to the Commissioner for Correctional Services or to this Court for an appropriate order.

I turn now to the sentences to be imposed.

THE SENTENCE FOR ROBBERY

The maximum penalty under s 386 (2) of the Criminal Code for armed robbery with actual violence is life imprisonment subject to s 19 (also) of the Criminal Code.

Sentencing guidelines for this offence have been set by the Supreme Court in William Ukukul Gimble v The State [1988-89] PNGLR 271. The particular category of robbery this case falls under is Category 3 which is a robbery of a vehicle on a road as correctly pointed out by Defence Counsel, Mr Masatt. In an uncontested case, which this case is, a sentence of less than five (5) years can be imposed unless there are aggravating factors such as use of actual violence, or the amount of money or goods stolen is large, in which case a sentence of more than five (5) years is appropriate. As there is actual violence in this case a sentence of more than five (5) years would be appropriate in my view.

As I have said earlier, this was not a robbery by a chance of circumstance but one which was well planned. The plan appears to have been devised by their leader Waiyake Komane and executed to precision by him and the other eight (8) accuseds. Two innocent lives have been lost through the action of the accused Waiyake Komane. Taking into account all these factors I have indicated above, I sentence each accused to imprisonment in hard labour for six (6) years, except for Waiyake Komane whose sentence would be seven (7) years IHL in view of the fact that he was their leader as well as the person who pulled the trigger. From that sentence I deduct one (1) year for their plea of guilty which plea has no doubt saved the police and this Court considerable time and expense in conducting a trial for robbery. Except for John Okate, Michael Kamel and Denis Moss, I have not deducted the period in custody for the other six (6) accuseds as I propose to do so in respect of their sentence for wilful murder.

Each accused's sentence which still has to be served for robbery is as follows:

SENTENCE FOR WILFUL MURDER

The wilful murder, as has been pointed out, was committed within minutes of the robbery. From the evidence, it appears that it was neither committed to effect the robbery nor was it committed to effect their escape. In other words there was nothing done by the deceaseds or even by Mr McCutchen prior to, during or after the robbery which would tend to show that Mr Komane did what he did in the presence of the other five (5) accuseds because the deceaseds and Mr McCutchen were doing something to prevent the robbery or to prevent them from escaping. It was a criminal act independent of the robbery. As it is an offence committed independently of the robbery I must decide whether the sentence for wilful murder should be concurrent or cumulative to the sentence for robbery. The Supreme Court has laid down the principles to be applied in making such a decision. This was in the case of the Public Prosecutor v Sidney Kerua and Billy Kerua [1985] PNGLR 85 where it held that:

"(2)     The conduct of a victim cannot be treated as a mitigating factor on sentence, R v Roberts [1982] 1 WLR 133 at 135 followed.

(3)      In deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(i)       Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii)      Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii)     When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205 followed."

I will take these principles into account in determining whether the sentence for robbery should be concurrent or cumulative to the sentence for wilful murder in this case.

The maximum penalty pursuant to s 299 (2) of the Criminal Code for wilful murder used to be imprisonment for life. That penalty was changed to a sentence of "death" through the Criminal Code (Amendment) Act 1991 (Act No 25 of 1991). My research has revealed that certification of that amendment was notified by notice in National Gazette No G85 of 26 September 1991 at page 3. My enquiries with the First Legislative Counsel, Mr James Fraser, revealed that the amendment came into operation on Certification by the Speaker of the National Parliament. Such Certification was made on 18th September 1991. The penalty is therefore available to be imposed at the appropriate time. The only thing that may cause difficulty in any decision by the Courts at this stage to impose such a penalty is the machinery as to how the sentence of death should be carried out and in this respect it appears that the Department of the Attorney-General is still working on the appropriate regulations.

Through the above amendment Parliament also amended s 19 of the Criminal Code whereby it made the sentence of death discretionary. A person liable to be sentenced to death may be sentenced to imprisonment for life or for any shorter term.

In deciding the appropriate penalty for this offence I am mindful of the Supreme Court's decision in Avia Aihi v The State (No 2) [1982] PNGLR 44 and Ure Hane v The State [1984] PNGLR 105, where it dealt with an appeal against sentence of life imprisonment for wilful murder. It decided that the maximum penalty should be reserved for the worst kind of wilful murder. As I am sitting as a National Court Judge I am bound by the said Supreme Court decisions.

Whilst it might appear that in view of the maximum penalty now being one of death which means that sentence of death should be imposed only for the worst wilful murder, and life imprisonment, which is the next punishment in terms of severity, should be imposed for other wilful murder, I do not, in view of the circumstances it was committed, consider that it is the worst wilful murder. Mr Komane did not fire two seperate shots and completely blow out the heads of both students. I take this view notwithstanding the unfair manner in which the death of innocent and unarmed students was caused. Furthermore, the accuseds in this case are not so dangerous to society that they should be put to death or be imprisoned for life. I therefore consider a sentence for a term of years to be appropriate.

I have been unable to locate the case of Moses Masona and 6 others where my brother Ellis, J imposed sentences ranging from 12 - 30 years. I have also been unable to locate the sentences imposed also by my brother Ellis J in the The State v Wagangul Elisha & Ors (Pilapila wilful murder case) unnumbered unpublished National Court judgment, June 27, 28 and July 1, 26, 1991. If I did, I would not have been prepared to follow the sentences in Moses Masona and 6 others. I would consider the sentence in the range of sentences of 20 years as was done in the Pilapila case to be appropriate.

As the accused Waiyake Komane was their leader who was also the one who pulled the trigger, I sentence him to imprisonment in hard labour for 20 years. As the others played a minor role by being present and encouraging Mr Komane by their presence, I sentence each of Markus Imorai, Daniel Louvo, Markus Pue, Francis Lawrence Marum and Alphonse Lapun Raphael to 15 years IHL. From the sentences the respective periods in custody are deducted as follows:

Bearing in mind what the Supreme Court said in paragraph 3, item (iii) in Sidney Kerua and Billy Kerua (supra), and having decided the appropriate sentences, I have considered whether the sentence for robbery should be concurrent or cumulative. Notwithstanding the fact that the wilful murder was separate from the robbery, I consider that it would be unfair and so crushing on the accuseds to impose a cumulative sentence. I therefore sentence each of the six (6) accuseds to serve their sentence for robbery concurrently with their sentence for wilful murder. As I have said previously, it is by imposition of stiff penalties that the Courts would make people value human life.

I order that the Walkie Talkie, the Westpac Bank Deposit Book and the cash be returned to Sonoma Adventist College. I further order pursuant to s 73 (1) of the Firearms Act Ch 310 that the factory-made shotgun be forfeited to the State and be destroyed by the Police after the expiration of 40 days from today.

I advise that if the accused are not happy with this sentence they have the right to appeal to the Supreme Court which they must do within 40 days from today.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.