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State v Manake (No 2) [2006] PGNC 174; N3504 (7 December 2006)

N3504

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1187 of 2006

THE STATE

V

UPANO MANAKE (No. 2)

Waigani: Kandakasi, J.
2006: 23 October
7 December

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Particular offence – Wilful murder – Double wilful murder – Death by drowning - Both deceased hands tied to back with barbed wire and pushed into fast flowing river – Serious aggravating factors – Offence committed in circumstances suggestive of concealing the commission of other serious offences – Gang armed robbery and rape – Further attempted wilful double murder –Conviction after trial – Prisoner not playing a lead and direct role in acts leading to death - First time offender –No genuine expression of remorse - Sentence of life imprisonment on both counts to be served concurrently served imposed - Criminal Code Sections 299 and 19.

Cases Cited:
The State v Arua Maraga Hariki (03/02/03) N2332.
The State v. Ben Simakot Simbu (No.2) (25/03/04) N2573.
Manu Kovi v. The State (31/05/05) SC789.
The State v. Kepak Langa (26/09/03) N2462.
Goli Golu v. The State [1979] PNGLR 653.
Ure Hane v. The State [1984] PNGLR 105.
Avia Aihi v. The State (No 3) [1982] PNGLR 92.
The State v. Ian Napolean Setep [1997] PNGLR 428.
The State v. Yapes Paege and Relya Tanda [1994] PNGLR 65.
The State v. Godfrey Edwin Ahupa (20/05/98) N1789.
The State v. Ombusu, an unreported National Court Judgment, dated 17th February 1995.
Bougapa Ombusu v. The State (No 1) [1996] PNGLR 335.
The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (unreported decision of Woods J. in Kimbe delivered on 7th February 1997.
Tony Imunu Api v. The State (29/04/01) SC684.
Simon Kama v. The State (01/04/04) SC740.
The State v. Peter Plesman and Paul Moaina (30/10/97) N1657.
David Bawai Laiam & Ors v. The State (01/04/04) SC741.
The State v. Kakou Pilai (24/11/05) N2945.
The State v. Robson Joseph (14/05/04) N2613.
The State v. Tomkuk Herman Itagau CR No. 1522 of 2005 (decision delivered on 20th October 2006).
The State v. Terence Ago (20/05/04) N2673.

7 December, 2006

1. KANDAKASI, J: On Friday 20 October 2006, in Kerema, this Court found you guilty on two charges of wilful murder. Then on Monday the 23rd the Court received your address on sentence as well as the submissions of the parties. The Court then reserved its’ decision on sentence. This is now the decision of the Court.

Relevant facts

2. The decision on your verdict contains all of the facts, most of which were not in issue. For the purposes of sentencing it is necessary to note the pertinent parts in a summary form, which is this. A group of two boys Hebex and Nanu Mahia with two girls, N and J E ("the Kerema group") from Kerema left Kerema and were heading for Lae on foot from Mamuro after getting there by dinghy from Kerema on 21 September 2005. After walking for a couple for days the group arrived at Kanabea. On 4 October 2005, the group continued its journey with a Jacob Mark joining them from Kanabea as the group’s guide or escort. Whilst on the way, near the Taure River, a gang of 5 armed men held up the Kerema group, stole their belongings, raped the girls, tied the hands of the boys as well as the girls and threw them into the Taure River. The girls managed to free themselves and swam ashore to safety. The boys however, drowned and died as their hands were tied at the back with barbed wire. One of the boys’ bodies was found by a search party about a week later. The body of the other Mahia boy has not been found. At the time of the armed hold up, rape and throwing of the Mahia brothers into the Taure River for their certain death, it became clear to the Kerema group that Jacob Mark was part of the gang. He was thus executing his part of an overall plan to conduct an armed hold up, rape of the E girls and murder when he led the Kerema group to the gang for the purposes of the crimes perpetrated against them.

3. The only factual issue for trial and resolved by trial was whether you were part of the gang, the gang’s plan and execution of the armed hold-up, rape and wilful murder of the Mahia brothers through the tying of their hands with barbed wire at their backs and throwing them into the fast flowing Taure River to meet their death by drowning? After the trial, the Court found you were very much a part of the gang, its plan to conduct armed hold up, rape and murder of the Kerema group and attempted murder of the E sisters.

Allocutus and submissions

4. In your address on sentence, you said sorry to the Court for the trouble that happened for which you are in Court. Police took you and locked you in the cell after what happened outside. You said you are a first time offender standing before the Court. You are from the bush and this is your first experience before the National Court. Whilst in remand, you said you have been attacked by other inmates or other remandees at Bomana Correction Services under orders or directions of a particular Correction Officer, without naming him or her. You further claim that those attacking you are related to the deceased and that if the court sends you back to Bomana you will be further attacked. Hence, you asked the Court to order you to serve your sentence at Buimo Correction Service in Lae.

5. Your lawyer added that you are 21 years old and come from Hu’yu village, Kanabea, Gulf Province. You are single with both of your parents still alive and well. In your family, you have 1 brother and 4 sisters. Education wise, you have reached grade 10 high school level. Since your arrest, you have been in custody for 10 months now.

6. After outlining your family and personal backgrounds, your lawyer submitted that you have two factors in your mitigation. These are you being a first time offender and your expression of remorse in Court. Your lawyer then proceeded to submit that, you have been found guilty on two serious charges of wilful murder after a trial. Counsel then ably took me to the recent decisions of the National Court involving double murder cases, particularly, in the case of The State v Arua Maraga Hariki[1] and The State v. Ben Simakot Simbu (No.2).[2]

7. Your lawyer submitted that, your case must be contrasted with the cases he referred to because in those cases the prisoners directly caused the death of the deceased and so therefore they received the death sentence. In your case, he emphasized the point that, you did not personally tie the hands of the deceased to their backs with barbed wire and then push them into the fast flowing river to meet their death. He further submitted that your part in the commission of the offences was that you were there only aiding and abetting the commission of the crimes. In other words, you were not a very active participant in the commission of the crime. Accordingly, he submitted that you should receive a sentence other than the maximum prescribe sentence of death.

8. Counsel for the State, submitted that you committed two very serious crimes and submitted that your case falls under the third and fourth categories per the decision of the Supreme Court in Manu Kovi v. The State.[3] These categories attract sentences between life and death. Counsel for the State also cited the decisions of the National Court in The State v. Kepak Langa[4] and another case, the citation of which he was not able to give.

Offence and sentencing trend and tariff

9. Section 299 of the Criminal Code creates and prescribes the maximum penalty of death for the offence of wilful murder. The sentence prescribed is subject to the Court’s sentencing discretion under s. 19 of the Code. That provision effectively allows a Court to impose a sentence other than the prescribed maximum of death in appropriate cases. Given that discretion, it is now trite law that the maximum sentence prescribed in any offence is for the worse category of the offence under consideration. In the case of wilful murder, the Supreme Court made that clear in Goli Golu v. The State.[5] Numerous other judgments such as the one in Ure Hane v. The State[6] and Avia Aihi v. The State (No 3)[7] reiterate that.

10. As I noted in the Ben Simakot Simbu (No.2) case, Bredmeyer, J. in the Ure Hane case without exhausting the list, provided a list of what he considered were worse cases of wilful murder. In summary, and in so far as is relevant, His Honour considered wilful murders committed in the causing of committing other offences such as robbery, or rape, or wilful murders committed in the cause of resisting or avoiding arrest or to assist in escapes from lawful custody and second or third wilful murders, as worse cases of wilful murders. His Honour went on to say that, where a wilful murder case falls into any of these categories, the then maximum sentence of life sentence should be seriously considered as opposed to an automatic imposition of it.

11. Since then the law changed in terms of the prescribed penalty from life imprisonment to death following an amendment to the Criminal Code in 1991. It follows therefore that, the principles enunciated in cases before the amendment apply with the necessary modification to say that the maximum penalty of death should be reserved for the "worst type" of wilful murder cases.

12. I have expressed the view in the Ben Simakot Simbu case that, it is much more difficult to determine when is a case of wilful murder worse. I noted that other judges acknowledge that difficulty as in the case of The State v. Ian Napolean Setep.[8] There my brother Sevua J said:

"Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, in my view, to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."

13. Earlier on Woods J. in The State v. Yapes Paege and Relya Tanda,[9] similarly, and in view, appropriately observed:

"But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killings – murder and manslaughter – lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life."

14. Similar sentiments were expressed by my brother Kirriwom J. in The State v. Godfrey Edwin Ahupa[10] where he said:

"...when you look at all these cases of deliberate and calculated murders, whether they involved pre-planning or not, whether they were carried out swiftly and quickly or slowly and in the most gruesome and barbaric or agonising manner, or whether the victims are gunned down, axed, knife or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated."

15. From these observations it is clear to me that judges have had a more difficult time trying to say when a wilful murder is worse, and how they have avoided doing that. This is evident for example in the Ure Hane case, where Bredmeyer J. gave a list of different categories of wilful murders. The other two members of the Court focused on the extenuating circumstances.

16. Before that, in the earlier case of Avia Aihi (No 3), whilst the members of the Court used the words "worst case type" or "most serious type of case," there were no enumeration of a list of the worst type of cases. Each member of the Court, instead, referred to the surrounding extenuating or aggravating features and decided accordingly. In the same case, the then Chief Justice admitted at p. 96:

"What is ‘the most serious type of case’ of any offence is very difficult to define with scientific precision. I cannot attempt a definition myself."

17. I have already expressed the view in the Ben Simakot Simbu case that, this difficulty demonstrates the fact that the sanctity of life itself is not easily open to categorizations. As such, there is an abundance of difference of opinions as to when would a case of wilful murder be worse warranting the maximum penalty of death and when is one not. It is thus possible that one judge could find a case to be a worse case of wilful murder and another judge could easily come to a different conclusion, given that there is no fixed mathematical or scientific formula to go by. In so doing, the kind of sentences imposed may differ greatly.

18. At the same time, however, I noted that amidst this difficulty, there appears to be consistency in approaches by the Courts. A case with more aggravating features could qualify to be a worse case, whilst one with more extenuating circumstances would be less serious, even though they will all be wilful murder cases where there is an intention to kill.

19. Since Parliament increased the maximum penalty of life imprisonment to death, the National Court imposed the death penalty in four cases already. The first case was The State v. Ombusu.[11] On appeal, a five men bench Supreme Court quashed the National Court judgment on technical grounds: See Bougapa Ombusu v. The State (No 1).[12]

20. The second case in which the death penalty was imposed was in the case of The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa.[13] There the defendants were part of a group conducting a payback killing of an innocent woman in a most brutal and horrendous way, causing much pain and anguish. The appellants appealed to the Supreme Court against both their conviction and sentence of death. After resolving the appeal against conviction against the appellants and some preliminary issues, a five member Supreme Court eventually got to a hearing of the appeal on its merits and decided on 19 May 2006 to uphold the appeal against sentence. That resulted in a substitution of the sentence of death by a sentence of life imprisonment.

21. The main reason for that outcome was the Supreme Court’s finding that the trial judge erred in not taking into account the appellant’s respective personal background and mitigating factors, namely the offenders all being first time youthful and unsophisticated offenders acting in a payback killing situation. Further the Supreme Court found that the trial judge erred in not finding what part each of the prisoner/appellants played in the killing of the deceased. Furthermore, the Supreme Court found the trial judge erred in noting that another serious offence, namely rape was committed against the deceased, which the trial judge did not find in his decision on verdict before conviction.

22. At the same time, the Supreme Court agreed that, that was a serious case of wilful murder of an innocent woman. The Court agreed with the trial judge that the killing was most brutal, vicious and "must be seen as the most horrendous crime, there are no words to really express the disgust and horror of such an abduction and vicious murder of what was an innocent woman". The Supreme Court then went on to express the view that this "kind of killing must not be tolerated in civil society and an appropriate punitive and deterrent sentence is warranted."

23. Before upholding the appeal, the Supreme Court considered the position on death penalty legislation and sentencing approaches in a large number of countries including, the USA, Great Britain and Australia and arrived at a list of what the Court considered as worse cases of wilful murders similar to the one in the Ure Hane case. Prior to arriving at that list, the Supreme Court held that:

"...the death penalty may be considered appropriate in a willful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenseless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, ‘consciousless’, ‘senseless’, ‘pitiless’ and ‘unnecessarily torturous’...The crime is committed ‘by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning’...... The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life."[14]

24. The third case in which the death penalty has been imposed is in the case of Arua Maraga Hariki, a decision handed down well before the decision of the Supreme Court in the Steven Loke Ume case. In that case, the prisoner killed two young men with whom he had been drinking alcohol. He killed them by strangling their necks. The evidence did not directly show that the prisoner killed both persons but only one of them. The Court found that prisoner killed the other man too based on circumstantial evidence, pointing to that inference. That decision is the subject of an appeal to the Supreme Court, which is yet to be determined.

25. The final case in which the National Court imposed the death penalty was the case of Ben Simakot Simbu. There I had a case of the prisoner going to the deceased house and found her sitting with her small two-year-old child and asked her unsuccessfully three times for her to give him a live chicken on credit. On the third occasion of her refusal, the prisoner got angry and grabbed the deceased, who struggled with him but the prisoner overpowered her and threw her on the ground. As she was on the ground, the prisoner pulled her shorts and pants down and raped her. Thereafter, he picked up an old but a still strong piece of iron that was there and hit the woman across her head as she lay on the ground, with intent to kill her. She died instantly. He then used the same piece of iron to hit the woman’s child on the head with intent to kill the innocent and helpless child also, who was at the time crying and watching helplessly. The child died instantly too. After having killed the woman and her child, the prisoner fled the scene and the locality of the crime scene to avoid arrest and prosecution. Eventually, however, the prisoner was arrested and charged and convicted after a trial.

26. I considered the case a worse case of wilful murder and decided to impose the death penalty. My decision is the subject of an appeal to the Supreme Court and is yet to be heard and determined. Before arriving at that decision, I noted that a careful consideration of the various approaches to sentence in wilful murder cases, I noted that, there was an important trend in homicide cases. The trend was that, the offence of wilful murder initially carried a maximum sentence of life imprisonment. This did not deter people who were inclined to killing and committing the offence given the prevalence of the offence. Parliament therefore amended s. 299 of the Code and increased the penalty to death. Despite this legislative change, no death penalties were imposed until the Ombusu case in 1995 followed by the Steven Loke & Ors case in 1997 and the Arua Maraga Hariki in 2003. Clearly therefore, there had been great reluctance in the National Court to impose the death penalty. On the other hand, offenders have not shown any reluctance in committing serious wilful and other types of killing deserving of the death penalty. Thus, offenders appear to be finding it easier to readily commit wilful murders and get away with a determinate term of years to life imprisonment. There simply appears to be no deterrence by the kind of sentences imposed in the majority of the wilful murder cases that have proceeded to trial and concluded with a sentence. In view of this, the Supreme Court in the Tony Imunu Api v. The State,[15] has suggested that the death penalty should be seriously considered.

27. Eventually the Supreme Court of which I was a member in Simon Kama v. The State,[16] which was a case of murder, had regard to all of the above and after endorsing effectively the views I have expressed held[17] that the time has come for the Court to seriously reconsider the guidelines set by earlier decisions of the Supreme Court. The Court was of the view that, the circumstances in which those guidelines were set are no longer the same and relevant today and more importantly because there is a lot of unnecessary and uncalled for killings today than it was before. The Court also reasoned that, the progressive increases in the sentences for unlawful killing cases has failed to deter other would be offenders.

28. The Court also expressed the view that the offenders, seem to view their lives as more valuable than the persons they have killed, evidence by pleas for lenient sentences and ready appeals against lenient sentences. The Court also expressed the view that, the both the National and the Supreme Courts have indirectly contributed to that view of the offenders by imposing far too lenient sentences. At the same time the Court expressed the view that the Public Prosecutor contributed to the views of the offenders in two respects. First, by his choosing to present indictments for lesser charges such as murder instead of wilful murder and manslaughter instead of wilful murder or murder in case where the facts clearly disclosed serious cases of wilful murder or murder. Secondly, by failing to appeal or cross-appeal against clearly lenient sentences as in The State v. Peter Plesman and Paul Moaina,[18] which in the view of the Supreme Court warranted the death penalty in a case of double murder.

29. Then in the light of the prevalence of the offence of unlawful killings, it suggested the Courts should:

"... 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 were evidence is required. Once the offender is able to do that, only than 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."

30 In David Bawai Laiam & Ors v. The State,[19] the Supreme Court, of which I was also a member, considered and approved the above views in these terms:

"We reiterate the view that the unlawful taking away of another person’s life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra)."

31 In that case, the Supreme Court was of the view that the death penalty was also warranted but the National Court imposed a sentence of 50 years. There, the appellant David Bawai Laim and his accomplices went armed with guns and conducted an armed hold up of a group of church goers worshiping. Before leaving the scene, they shot and killed the decease with one of the guns they carried. Given those facts, the Supreme Court was of the view that the appellant should have been indicted for wilful murder and given the death penalty. He was however, fortunate that he was given a determinate sentence of 50 years.

32. Earlier, in the Tony Imunu Api case the Supreme Court of which, I was a member, was of the view that the killing in that case was of the worse kind. That was a case of killing of an innocent school student in bizarre circumstances. When police eventually located the deceased body, he was lying naked face down with faeces still on his anus. Medical evidence showed multiple depressed fractures to the skull. On the left frontal area were a 3 cm diameter crepitus and a 4 cm crepitus on the right. On the left temporal area was a 10 cm cross-depressed fracture while a 6 cm fracture was on the right side. There were multiple abrasions on the right shoulder and abdomen and faeces found around the rectum with dilation of 5 cm and some excoriation of rectal wall.

33. In dismissing an appeal against both conviction and sentence of life imprisonment, the Supreme Court expressed the view that, that was a worse case of wilful murder. As such, the Court said the appellant should have been given the death penalty but was not. The Supreme Court in the Steven Loke Ume & Ors case referred to the decision in the Tony Imunu Api case, as case in which the Court has considered the imposition of the death penalty was called for. The decision in Steven Loke Ume & Ors case did not express any contrary view in respect of the views expressed in the Tony Imunu Api case.

34. The decision in the Steven Loke Ume & Ors case did not have any regard to the decisions in the Simon Kama and David Bawai Laiam & Ors cases. Either because of that fact or an inadvertence on the part of the Supreme Court in the Steven Loke Ume & Ors case said nothing about the prevalence of the offence of wilful and other kinds of homicides, which calls for sterner sentences. Nevertheless, in the particular facts of the case before it, the Supreme Court in the Steven Loke Ume & Ors case was of the view that a strong punitive and deterrent sentence was called for and was warranted.

Your Case

35. Taking into account all the above, I now turn to a consideration of an appropriate sentence for you. For the purposes of determining an appropriate sentence for you I note and take into account your personal and family backgrounds as outlined by your learned counsel. I then need to take into account the factors for and against you before arriving at an appropriate sentence. I commence that process by first taking into account the factors against you, starting with the fact first that, this is a case of double wilful murder. It is serious enough to wilfully take away the life of another person because of the sanctity of life. It is doubly serious to take away the life of the second person. This was highlighted in the Steven Loke Ume case and most of the earlier cases such as the Ure Hane case.

36. You might argue that, your cases is not as serious as was the case in the Steven Loke Ume case and the David Bawai Laiam & Ors, in view of the fact that, the deceased in your case were not shot at with the use of a gun or brutally and viciously cut or chopped by the use of a bush knife or an axe. Such an argument would however ignore the fact that, the way in which death was brought upon the two deceased were very cruel and inhumane. Both of the decease hands were tied with barbed wires to the back, and thrown to the river. One of the deceased bodies was found with his hands still tied to his back with barbed wire. It is not a pleasant experience to die by drowning. It is a slow and painful process, especially when one’s hands are tied and that person is rendered totally helpless. The relatives did not have the opportunity to properly view and pay their last respects on the untimely death of one of their relatives and give him a decent burial, so that his soul could rest in peace according to our customary and some Christian believes.

37. Secondly, you committed the offence of wilful murder against two very innocent, unarmed and helpless young men. After your gang had successfully conducted the armed robbery and rape of the two female victims, the two deceased were in no position to fight you and your group and cause any harm to you. You had already disarmed them and you even had both of their hands tied to their backs by barbed wire. They were also far away from their own village and familiar territory. It was therefore, totally unnecessary and totally uncalled for, for you and your gang to take the further step of pushing the two deceased into the fast flowing Taure River to meet, in my view, their certain death by drowning particularly when you had their hands tied to their backs.

38. Thirdly, you and your gang were armed with bows and arrows and bush knife. These weapons in my view, apart from other contributing factors, also encouraged you to commit the offences you committed against the deceased and the two female victims. The use of bush knives and such other weapons are very common these days. Hence, the courts have taken the presence and or use of such weapons as aggravating[20] factors.

39. Fourthly, I find from the primary facts before me that this was a well planned and implemented killing and prior to that, armed robbery and rape of the two female victims. It was therefore not a crime of a mere chance. Offences out of mere chances are less serious compared to those that are committed with pre-planning and execution of it. Indeed, pre-meditation is a factor that makes a wilful murder as a case warranting the death penalty according to the recent decision of the Supreme Court in Steven Loke Ume & Ors case, the relevant part of which I quoted at paragraph 23 above.

40. Fifthly, I find that your gang committed the wilful murders and the subsequent attempted murders by drowning of the female victims were to conceal the commission of the other serious offences of armed robbery and rape and wilful murder of the deceased. This is a very serious aggravating factor against you. When I consider this factor together with the second factor, it is not clear to me that, neither you nor any of your other accomplices were in immediate danger of retaliatory action let alone arrest and prosecution for the crimes your gang perpetrated against the Kerema group. Up to this day, it is more than 1 year since the commission of the offence. Following your arrest you named the persons that were involved in the commission of the offences. Your accomplices are yet to be arrested and prosecuted for any of these offences. This confirms in my view that, your gang was in no immediate danger of being arrested and prosecuted. That being the case, there was no good reason to kill the two deceased and the attempted murder of the female victims.

41. Further, you were part of an armed gang which carefully planned and committed the various offences including the wilful murder of the deceased. As I said in a number of decisions on sentences in Kerema where your trial took place, as in the case of The State v. Tomkuk Herman Itagau[21] citing my earlier decision in The State v. Terence Ago,[22] the commission of an offence in the company of another is more serious than and an offence committed by a lone actor. It is accepted now that, where an offence is committed in the company of another is a serious aggravating factor because those who are acting together give strength and encouragement to each other to accomplish their objective of committing the offence. This is why in my view sections 7 and 8 of the Criminal Code makes every person acting in the company of others a principal offender, whether or not, he or she is the principal actor.

42. Furthermore, you were found guilty and convicted after a trial. That forced one of your surviving female victims to come to Court and relieve her bad memories and the ordeals you and your gang put her and her sister and the two deceased through. Indeed, the witness cried and had tears run down her eyes as she testified. She had to stop to regain her strength to continue to testify against you. You had no reason whatsoever to put her through that ordeal let alone the expenses the State had to outlay and the time the Court had spent to hear the evidence and come to a decision on your verdict. This is more so when you had no evidence to rebut the case against you save only your own testimony aimed at down playing your part in the commission of the offences.

43. Finally, I note that you are 29 years old. This means you were old enough to know that, what you set out to do was wrong but, you proceeded to be part of the gang and execute your plans to carry out the armed robbery and rape and the eventual killing of the deceased and the attempted murder of the female victims. There is no evidence of you having any mental disability or any other defect that could account for your serious unlawful conducts.

44. Against the above aggravating factors, I note that you have a number of mitigating factors. First, you have no prior conviction. That means this is your first ever offence. Usually, the law in appropriate cases allow for a lenient sentence against first time offenders like you, particular where there are other good mitigating factors.

45. Secondly, I note that you have said sorry for what you have done. Unfortunately this expression of remorse came after a long while of denial from the date of your arrest to committal and your trial and conviction after a trial. I find this expression of remorse is not genuine and is a mere expression without any meaning attached to it. This is confirmed by a lack of any evidence of any compensation being paid to the deceased and the other victims of your offence and or you directly saying sorry to the victims of your offence and the relatives of the deceased.

46. Thirdly, I note that there is no direct evidence of you taking the critical step of tying the deceased hands to the back and eventually pushed them into the Taure River to meet their certain death. Nevertheless, I note that you did otherwise take an active part in the commission of the various offences that were committed by your gang. For example, according to the evidence of the sole State witness, you raped her and robbed her and the rest of the Kerema Group. There is also evidence that you were with the person who pushed the deceased into the Taure River.

48. Finally, I once again note your personal and family background, which is that of an unsophisticated villager leading an ordinary village live. However, you were mature enough to know and appreciate that what you set out to do with the gang was wrong but you freely participated in the commission of the various offences.

49. Weighing the factors for and against you, I find that the factors against you far out weigh those in your favour. I find that the only factors in your mitigation are rendered insignificant by the factors in your aggravation. Accordingly, I have no difficulty in finding that despite the fact that the deceased were not brutally attacked or chopped as in other cases of wilful murder, this is a worse case of wilful murder. This is because the killing involved the killing of two totally, innocent and armless young men by the slow process of drowning. Also, the killing of the deceased was to conceal and or to avoid arrest and prosecution in relation to two earlier serious offences of armed robbery and rape of the members of the group the deceased were part of by your armed gang. In the circumstances, I am of the view that the maximum prescribed sentence of death is warranted.

50. Nevertheless I will not impose prescribed maximum sentence of death against you because of the fact that there is no evidence of you directly taking the steps that eventually led to the deceased death. I also consider your being a first time offender and being an unsophisticated and ordinary villager are relevant in this consideration. In the circumstances, I consider the next possible highest sentence of life imprisonment is warranted in the particular circumstances of this case. Accordingly, I impose that sentence against you to be served in hard labour at the Bomana Correction Service. A warrant of commitment in those terms shall issue forthwith.

49. In making the order for you to serve your sentence at the Bomana Corrections Services, I have at this stage declined to make any orders in relation to your request for a transfer out of Bomana to Buimo Correction Service. This is simply because you have not provided me with any evidence substantiating the claims you have made in Court. If indeed there is a problem in the terms you allege, I suggest that you take it up with the Jail Commander and if need be, he will arrange for your transfer out of Bomana to Buimo Correction Service.

___________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Public Solicitor

^[1] (03/02/03) N2332.
^[2] (25/03/04) N2573.
^[3] (31/05/05) SC789.
^[4] (26/09/03) N2462.
^[5] [1979] PNGLR 653.
^[6] [1984] PNGLR 105.
^[7] [1982] PNGLR 92.
^[8] [1997] PNGLR 428.
^[9] [1994] PNGLR 65.
^[10] (20/05/98) N1789.
^[11] an unreported National Court Judgment, dated 17th February 1995.
^[12] [1996] PNGLR 335.
^[13] Which was a decision of Woods J. in Kimbe on 7th February 1997.
^[14] At p.34, para. 66.
^[15] (29/04/01) SC684.
^[16] (01/04/04) SC740.
^[17] at pp. 17 – 19.
^[18] (30/10/97) N1657.
^[19] (01/04/04) SC741.
^[20] See for examples, The State v. Kakou Pilai (24/11/05) N2945 and The State v. Robson Joseph (14/05/04) N2613.
^[21] CR No. 1522 of 2005, (decision delivered on 20^th October 2006).
^[22] (20/05/04) N2673.