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State v Itaar [2013] PGNC 314; N5558 (22 May 2013)

N5558

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 898 OF 2011
CR 903 OF 2011
CR 904 OF 2011

THE STATE

V

VINCENT ITAAR

&
SYLVESTER MINJIMARIN

&

PAUL MINJIMARIN – NO.2

Vanimo: Geita AJ
2013: May 22,

CRIMINAL LAW – Sentence after trial – Wilful Murder – Conclusive circumstantial evidence -– Elements present - Circumstantial evidence – Not mere conjectures - Section 299 (1) Criminal Code

CRIMINAL LAW – Sentence after trial - Wilful murder, Section 299 (1) of the Criminal Code – Use of dangerous weapon a Bayonet- Multiple wounds inflicted causing death- Prisoners' each and severally sentenced 20 years less pre trial custody of 2 years.

Cases Cited

Kovi v The State [2005] PGSC 34; SC 789
Goli Golu 1979 and John Kalabus 1988 PNGLR 193
Thress Kumbamong v The State (2008) SC 1017

Counsel:

Jim W Tamate, for the State.
Robert Bellie, Ms. Renatta Yayabu for the prisoners

JUDGMENT ON SENTENCE

22 May 2013

1. GEITA AJ: The prisoners have been found guilty of one count of wilful murder contrary to s. 299 (1) of the Criminal Code Act. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence.

BRIEF FACTS
2. For purposes of completeness, I have detailed the facts as found during trial and conviction on 10 May 2013. The facts reveal that on the morning of 9th May 2011 at a beach near Vanimo Airport, the three prisoners were walking around the airport road after drinking at Kapiak Club. Along the way they met the deceased and demanded him to buy them some more beer in which he refused saying that he had already bought beer for them which they had consumed in the car. Danny who was also with them stopped them from questioning the deceased saying that he had already bought them beer but was told to shut up or he would be stabbed. The State alleged that as they began to punch and assault the deceased, Sylvester Minjimarin took out a bayonet and stabbed him on the body. The deceased attempted to escape by running towards the beach. They all ran after him as Danny tried to stop them. Whilst on the beach prisoner Paul Minjimarin took the bayonet from his brother and stabbed the deceased again on his chest as he cried out in pain. Mike got a piece of timber and hit the deceased on his head whilst the accused Vincent took a piece of log on the beach and hit the deceased on his back where he fell and died as a result of the injuries occasioned to his body. The State alleges that the three prisoners all acted together and invoked provisions under section 7 of the Criminal Code. The State further alleged that as a result of the stabbing and assault on the deceased, they intended to kill the deceased. After the killing they all returned to the Kapiak Club.

ANTECEDENTS

3. The State presented brief antecedents report on the three prisoners with no prior convictions recorded against them.

ALLOCATUS

4. Upon administering the allocatus pursuant to section 593 of the Criminal Code, the prisoners spoke separately:

AGGRAVATING FACTORS
5. The circumstances of aggravation in relation to this offence are as follows:

1. Dangerous weapon, a bayonet knife was used by the prisoners.
2. There was use of excessive force with multiple wounds
3. A life has been lost
   

MITIGATING FACTORS
6. 1. No pre planning or pre meditation
2. Surrendered and co-operated with police during investigations
3. Expressed remorse
4. No prior convictions, first time offenders

Submissions on sentence
SUBMISSIONS FOR AND ON BEHALF OF THE PRISONERS

7. Ms. Yayabu for the three prisoners pleaded for long terms of imprisonment as opposed to the death penalty and invited court to take note of their pleas in allocutus. All three prisoners have been detained for over 2 years now in pre trial custody.

8. In her oral submission Defence Lawyer Mrs. Yayabu referred me to the case of Manu Kovi v The State (2005) N 789 and advanced that this case falls with the category 2 range attracting a sentencing range between 20 to 30 years. She conceded to the facts that a weapon was used and the attack being vicious however there was no pre panning. Ms. Yayabu submitted that the court was not restricted to go outside of the guidelines set in the above case but should consider a term of imprisonment not too crushing as life imprisonment.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

9. The State Prosecutor Mr. Jim Tamate submitted that the upper range of category 2 sentencing tariff in Manu Kovi case (supra) of 30 years or life to be considered in light of the seriousness and gravity of the murder. He advanced that a bayonet was used to inflict multiple injuries to the deceased's neck and body. The prisoners pleaded not guilty and were found guilty after trail. The killing was brutal and an innocent life taken away from his family and children. The prisoners acted together in the killing. Mr Tamate submitted that the prisoners pleas for leniency and concern for their family members was noted however he questioned about the victim's family concerns. Their concerns should be given more prominence than the prisoners' he said. He conceded that the maximum punishments were best left for the worst types of cases. (Goli Golu 1979 and John Kalabus 1988 PNGLR 193 was cited in support)

APPLICATION TO THIS CASE

Decision of the court
10. Since both counsels have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. I too hold the view that trial judges discretionary powers in sentencing should be jealously guarded and not curtailed, save for Parliamentary intervention.

11. The first issue is whether the offence committed by the prisoners is of the worst type and whether the court should impose the maximum prescribed sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus 1988 PNGLR 193). I am more inclined to agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly. An innocent life tragically lost as a result the attack.

12. The second issue is framed in this question and that is what then should the appropriate sentence be in your case each and severally? I have had the benefit of oral submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoners. I need not restate them here again. The death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the "worst types" wilful murder cases. I hold the view that their pleas in allocutus and favourable mitigating factors must go in their favour also: first time offenders, voluntarily surrendering to police etc, hence falling short of the "worst type" category warranting life imprisonment.

13. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against I have come to the conclusion that the appropriate sentence to be imposed upon you is the mid range of Category 2 in the Manu Kovi sentencing tariff.

SENTENCE

Ordered accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner