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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 1532-1541 OF 2003
THE STATE
V
JACKY VUTNAMUR AND KAKI KIALO (NO 2)
KIMBE: CANNINGS J
8, 23 JUNE, 21 JULY 2005
CRIMINAL LAW – sentences – Criminal Code, Section 300 (murder) – sentences for two prisoners – one convicted after pleading not guilty, the other after pleading guilty – both members of a gang that committed armed robbery of a store – police officer murdered in course of the robbery – neither prisoner fired shots that killed deceased.
CRIMINAL LAW – sentencing guidelines for murder cases – recent Supreme Court decisions – identification of starting point for head sentence – identification of relevant considerations – application of relevant considerations.
CRIMINAL LAW – sentences – suspended sentences – immediate suspension inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete – each prisoner must serve minimum sentence after which suspension may be granted subject to conditions.
Two prisoners were each convicted of the murder of a police officer. The police officer was killed in a shootout with members of an armed gang who had just robbed a store at Kapiura, West New Britain. Both prisoners were members of the gang but neither fired the shots that killed the deceased. The first prisoner was the driver of a vehicle used by the gang. The second prisoner was armed and stood watch outside the store while others went inside. The first prisoner was convicted following a trial at which his defence of compulsion was rejected. The second prisoner pleaded guilty.
Held:
(1) This was a serious case of murder but not in the worst-case category.
(2) Guidelines given in recent Supreme Court cases taken into account. Simon Kama v The State (2004) SC740 considered; Manu Kovi v The State (2005) SC789 applied.
(3) Strong mitigating factors in each case were that neither prisoner fired any shots or did anything that directly killed the deceased; enabling the starting point to be reduced from a range of 20 to 30 years, to 10 to 15 years.
(4) The second prisoner’s surrender and confession to the police, his guilty plea and expression of genuine remorse were significant mitigating factors.
(5) Both prisoners have strong family support and have made some attempt at reconciling with the deceased’s relatives but in the absence of special circumstances, neither sentence is ripe for immediate suspension.
(6) The first prisoner is sentenced to 15 years imprisonment, with at least 9 years to be served.
(7) The second prisoner is sentenced to 9 years imprisonment, with at least 5 years to be served.
Cases cited:
The following cases are cited in the judgment:
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
The State v Jacky Vutnamur and Kaki Kialo (2005) N2848
Counsel:
L Rangan for the State
O Oiveka for the first co-accused
R Inua for the second co-accused
SENTENCES
CANNINGS J:
INTRODUCTION
This is a decision on the sentences for two men convicted of murder. They are Jacky Vutnamur, the first prisoner, and Kaki Kialo, the second prisoner. They were convicted on 8 June 2005.
BACKGROUND
The incident
The murder took place at Kapiura in the Bialla District of West New Britain, on the morning of Monday 5 May 2003. A police officer, Walter Ajimba, was shot and killed during the course of an armed robbery of the Kapiura Trading store.
The prisoners were members of a gang of about six men who committed the robbery. The day before, some members of the gang had stolen a Toyota Hilux utility and this was used to take them to the scene of the robbery and as a getaway vehicle. Earlier that morning the gang had gone to Salelubu and held up another police officer from whom they stole a pump action shotgun, cartridges and police uniforms, which they used in the robbery. That police officer was forced to go with the gang and travelled in the back of the utility to the scene of the robbery and murder, and later escaped to safety.
Some gang members armed with firearms went inside the store, held up the staff, the manager and customers and stole K45,000.00 cash and K3,000.00 worth of store goods. They did not fire any shots while they were inside the store. They did not physically injure any staff members, customers or bystanders.
When the gang emerged from the store and were about to make their getaway, the police officer, Walter Ajimba attempted to apprehend them by firing shots from a gas gun. He struck one of the gang members but did not seriously injure him. Two of the gang members fired back and a shootout ensued, in the course of which Walter Ajimba was fatally injured. He was shot eight times. Neither of the prisoners fired the shots that killed Walter Ajimba.
The first prisoner stayed in the vehicle at all times. He was the driver. He drove the vehicle to the scene of the robbery and murder and drove it away as the gang escaped. When other gang members were inside the store, he stayed in the vehicle. There was another gang member outside with him who was armed, keeping watch and guarding the police officer who the gang had brought along under threat. The first prisoner was unarmed. He did not talk to anyone. He did not threaten anyone.
The second prisoner was armed with a gun and kept watch at the doorway of the store while other gang members went in and held up the manager. He was still at the store when the shootout started. Then he escaped with the others. He did not physically injure anyone in the course of the robbery.
Later events
The first prisoner surrendered to the police five days after the robbery and murder. He admitted driving the vehicle used by the gang but denied being a member of the gang and said he was coerced into doing it. He maintained his innocence up to and during the trial.
The second prisoner surrendered to the police around the same time as the first. He confessed to his involvement and cooperated with the police in their investigations.
Trial
On 18 May 2005 the two prisoners were brought before the National Court and jointly indicted for wilful murder under Section 299 of the Criminal Code.
The first prisoner pleaded not guilty, so a trial was held. Witnesses were called and evidence adduced. His main defence of compulsion, under Section 32 of the Criminal Code, was rejected. He was convicted not of wilful murder, but murder, due to the combined effect of Sections 8, 300(1)(b) and 539(1) of the Criminal Code. The basis of the verdict was that he was involved with others in prosecuting an unlawful purpose (the armed robbery) and a person was killed intentionally by a member or members of the gang. What saved him from being convicted of wilful murder was the conclusion that the offence of wilful murder was not a probable consequence of the armed robbery (The State v Jacky Vutnamur and Kaki Kialo (2005) N2848).
The second prisoner pleaded guilty to wilful murder. However, in line with the verdict on the first prisoner I substituted his plea with a plea of guilty to murder and convicted him accordingly.
Other matters
Both prisoners were also charged with unlawful use of a motor vehicle, armed robbery and unlawful deprivation of liberty. They have not faced trial on those charges. The State has elected to proceed first with the charge of wilful murder, as Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence (Charles Bougapa Ombusu v The State [1996] PNGLR 335).
As for the other gang members, the court has been informed that the prime suspect in the actual killing of Walter Ajimba has since been shot dead. The identity of the other gang members is known but their whereabouts are not. The two prisoners presently being sentenced are the only members of the gang to have faced trial.
RELEVANT LAW
Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:
ANTECEDENTS
Neither prisoner has any prior convictions.
ALLOCUTUS
I administered the allocutus, ie each prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment.
The first prisoner, Jacky Vutnamur, stated:
This is my first time to be in court. I was born in this province. This is where I grew up and got married. I was not in the initial plan to do this thing. But the court has found me guilty so I apologise to the court and ask for mercy. I have three character references to hand up, to show that I am not a bad person. I have never been in this sort of trouble before. I surrendered to the police and made their work easy.
The second prisoner, Kaki Kialo, stated:
This is my first time to be in trouble with the law. I do not have a bad name with the police. I am very sorry for what happened and I apologise to the police officer and his relatives but I did not kill him. I am married with two children and I have a 5-hectare oil palm block. I ask for the court’s mercy. Please consider a lenient sentence for me and put me on probation. I promise to this honourable court that this is my first and last time to be involved in this sort of trouble.
SUBMISSIONS BY DEFENCE COUNSEL
The first prisoner, Jacky Vutnamur
Mr Oiveka highlighted the following mitigating factors:
Mr Oiveka urged the court to impose a low-range sentence, much lower than what might be suggested by the Kama guidelines.
The second prisoner, Kaki Kialo
Mr Inua highlighted the following mitigating factors:
Mr Inua urged the court to impose a sentence much lower than the range of 31 years to life imprisonment.
SUBMISSIONS BY THE STATE
Mr Rangan, for the State, highlighted the following aggravating factors:
Mr Rangan concluded that the court should not bother trying to analyse the degree of involvement of each prisoner in what happened. They were both members of an armed gang who committed a serious robbery resulting in a police officer being murdered. They both deserve the same treatment. As this is a worst-case scenario they should each get life imprisonment.
PRE-SENTENCE REPORT
To help me make decisions on the appropriate sentences I requested and received pre-sentence reports under Section 13(2) of the Probation Act in relation to each prisoner. The reports, prepared by the Kimbe office of the Community Correction and Rehabilitation Service, are summarised below.
The first prisoner, Jacky Vutnamur
Of Takekel, East New Britain heritage – raised in Buvussi, West New Britain – aged 26, married with two children – educated to Grade 8 at Hoskins Secondary School – never employed in the formal sector – parents still alive – father is a former police officer and knew the deceased well – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in Assemblies of God and South Seas Evangelical Church activities prior to commission of offence – a local volunteer Community and Rehabilitation Officer, Bonley Tiun has known the prisoner since childhood – no previous attitude or behavioural problems – surprised to hear about his involvement in the crime but a sociable person who gave in easily to friends.
The deceased’s wife, Linda Ajimba, was interviewed – neither offender had until recently paid compensation or apologised – compensation had recently been offered, but not enough, and negotiations are ongoing – confirmed that her family and the first prisoner’s family knew each other well – she has no desire for payback against the prisoner – but still carries the pain within her – her husband was in good health and his death is a great loss.
Character references by Bonley Tiun, Senior Pastor Herman John, Buvussi AOG Church; and Alphonse Camillus, Youth Representative, Mosa Local-level Government, were all positive.
The report concludes that there is strong family and community support at Buvussi for the offender if he is released into the community. He is a suitable candidate for probation supervision for an extended period.
The second prisoner, Kaki Kialo
Of Suanumbu, East Sepik heritage – born and raised in West New Britain – aged 28, married with two children – educated to Grade 10 at Hoskins Secondary School – never employed in the formal sector – parents deceased, leaving behind an oil palm block – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in South Seas Evangelical Church activities prior to commission of offence – a church elder, Thomas Saltik, confirmed that the prisoner was once an active church member but had ‘back-slided’ – his wife and children are now suffering.
The deceased’s wife, Linda Ajimba, was interviewed – neither offender had until recently paid compensation or apologised – compensation had recently been offered, but not enough, and negotiations are ongoing – confirmed that the second prisoner’s relatives paid K500.00 cash on 21.06.05 and promised to pay another K500.00 soon – she has no desire for payback against the prisoner – but still carries the pain within her – her husband was in good health and his death is a great loss.
Village peace officer at Kavui, Paul Kambari, was interviewed: prisoner is a hardworking person who socialises well and is involved in organising youth activities.
The report concludes that there is strong family support for the offender if he is released into the community. He is a suitable candidate for probation supervision subject to strict conditions.
DECISION MAKING PROCESS
To determine the appropriate penalty for each prisoner I will adopt the following decision making process:
STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?
Approach
In setting an appropriate head sentence I will take this approach:
Starting point
The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases.
Firstly in Simon Kama v The State (2004) SC740, Sevua J, Kandakasi J, Lenalia J, the Court stated:
On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors, both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:
(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;
(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;
(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;
(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;
(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;
(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.
Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.
More recently the Supreme Court revisited the Kama guidelines in Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J. It was suggested that murder convictions could be put in four categories of increasing seriousness, as shown in the table blow.
SENTENCING GUIDELINES FOR MURDER DERIVED FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE
| No | Description | Details | Tariff |
| 1 | Plea – ordinary cases – mitigating factors – no aggravating factors | No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily
harm | 12-15 years |
| 2 | Trial or plea – mitigating factors with aggravating factors | No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness | 16-20 years |
| 3 | Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity
of offence | Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg
gun, axe – other offences of violence committed | 20-30 years |
| 4 | Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors,
or mitigating factors rendered completely insignificant by gravity of offences | Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course
of committing another serious offence – complete disregard for human life | Life imprisonment |
The guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits. I have considered Mr Oiveka’s submission that the guidelines in Kama are intended to cater for cases where the main perpetrator of the murder is being sentenced. However the Supreme Court did not make that distinction in Kama. Nor did it make the distinction in Kovi. I am obliged to use these guidelines as a starting point and then take into account the particular circumstances.
I reject Mr Rangan’s submission that this case falls into the worst-case category. Categorising the matter in that way would be to lose sight of the facts and disregard the guidelines in both Kama and Kovi. A police officer was killed in the course of duty, so it is a very serious matter. But neither of the prisoners physically and directly killed him and I do not feel that I would be dispensing justice if I ignored that. I also have difficulty with Mr Rangan’s submission that the second prisoner’s guilty plea should not count for anything as this is a murder case. That runs against the thinking of the Supreme Court in Kama and cuts across sound and sensible sentencing practices. I can imagine that in a very bad, vicious or pre-meditated wilful murder case the mitigating effect of a guilty plea might be negligible. But this is not such a case.
I consider that the first prisoner’s case falls within category (f) of Kama, resulting in a sentence of 41 years to life imprisonment; and within category (3) of Kovi, resulting in a sentence of 20 to 30 years.
The second prisoner’s case falls within category (c) of Kama, resulting in a sentence of 31 years to life imprisonment; and within category (3) of Kovi, resulting in a sentence of 20 to 30 years.
As Kovi is the more recent decision I will apply its guidelines while at the same time paying close attention to the dicta in Kama. The starting point for each prisoner is therefore within the range of 20 to 30 years imprisonment.
Relevant considerations
I will now set out the issues I consider should be taken into account when determining whether to increase or decrease the head sentence of each prisoner or leave it within the starting point range.
The relevant considerations are:
Rationale
The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.
Another thing to note is that there are, in general, three sorts of considerations listed.
Numbers 1 to 9 focus on the circumstances of the incident that led to the death.
Numbers 10 to 14 focus on what the offender has done since the incident and how he has conducted himself.
Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
Application of considerations
I now apply the above considerations to each prisoner.
The first prisoner, Jacky Vutnamur
Taking all the above considerations into account, the strong mitigating factors that stand out are Nos 1 and 9. The first prisoner did not directly kill the deceased and he played a minor role in the activity – the shooting – that led to the death. I consider that it lies within my sentencing discretion to take these matters into account in a way that will result in a sentence lower than the range of 20 to 30 years suggested by the Kovi guidelines. For this sort of case I consider that a sentence in the range of 10 to 15 years is appropriate.
When I look at the other factors, most of them are aggravating. I consider Nos 2, 4, 7 and 8 are significant aggravating factors. Nos 3, 5, 6, 13, 14, 16 and 17 are not significantly aggravating.
Nos 10, 11, 12 and 15 are mildly mitigating factors.
I accordingly fix a head sentence for the first prisoner, Jacky Vutnamur, of 15 years imprisonment.
The second prisoner, Kaki Kialo
Taking all the above considerations into account, the strong mitigating factors that stand out are Nos 1, 9, 10, 11, 12, 13 and 14. Nos 1 and 9 apply as they did in relation to the first prisoner. The second prisoner also did not directly kill the deceased and he played a minor role in the activity – the shooting – that led to the death. As explained earlier, for this sort of case I consider that a sentence of around the range of 10 to 15 years is appropriate. Nos 10 and 11 give credit to the prisoner for giving himself up and immediately confessing and then co-operating with the police. No 12 acknowledges the steps taken by his family to make a gesture of reconciliation with the deceased’s relatives, particularly his widow. No 13 acknowledges the effect of the guilty plea. I appreciate what Mr Rangan submitted about guilty pleas not being meaningful in murder cases but given the nature of the present case, I think it should be given considerable weight as a mitigating factor. Likewise with No 14 as the prisoner is genuinely remorseful.
Nos 2, 4, 7 and 8 are significant aggravating factors, particularly Nos 2 and 4, as the prisoner carried a gun, unlike the first prisoner who was unarmed. Nos 3, 5, 6, 16 and 17 are not significantly aggravating.
No 15 is a mildly mitigating factor.
There are many more mitigating factors for the second prisoner than there are for the first prisoner. The second prisoner will receive a lesser sentence than the first prisoner but the effect of the mitigating factors is offset to some degree by the fact that he was armed.
I accordingly fix a head sentence for the second prisoner, Kaki Kialo, of 9 years imprisonment.
STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCES BE SUSPENDED?
Suspension now?
I have given this close consideration. However there are two things that convince me that it is not appropriate to suspend any part of either sentence at this stage. First, the seriousness of the offence. These are sentences for murder and there must be very special circumstances shown to warrant suspension; and none have been demonstrated. Secondly the process of reconciliation and compensation between the prisoners and the deceased’s widow and children is not complete. It is ongoing, which is understandable as the death occurred only a little over two years ago.
The answer to the question posed is no, neither of the head sentences will be suspended at this stage.
Suspension later?
I will nonetheless qualify each sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment, if before the expiration of the term prescribed, the National Court approves a post-release parole period with strict conditions attached.
This would be done if it were established that the prisoner had a good disciplinary record within the gaol in which he has been detained and if the reconciliation and compensation process referred to above had been satisfactorily concluded.
The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs and that he be of impeccable behaviour.
I will set the following minimum periods that must be served:
STEP 3 - IF ALL OR PART OF THE SENTENCE IS SUSPENDED, WHAT CONDITIONS SHOULD BE IMPOSED?
Step 3 of the sentencing process will not be considered at this stage.
SENTENCE
The Court makes the following order:
Sentenced accordingly.
____________________________________________________
Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor
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