State v Nicky [2016] PGNC 298; N6499 (20 October 2016)

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CRIMINAL LAW – Sentencing - five prisoners found guilty of murder under section 300 of the Criminal Code Act Chapter No. 262 - conviction based on circumstantial evidence - whether each prisoners should receive the same sentence - principle of parity in sentencing followed - criminal culpabilities of each prisoner difficult to assess under the circumstances - prisoners continue to maintain their innocence during administration of allocatus - prisoners showed no remorse - mitigating and aggravating factors discussed - whether prisoners suitable for probation

Five (5) prisoners were convicted of murdering one Peter Migu on 26 October 2014 in Gunanur village at Gazelle, in East New Britain Province. They were initially charged with wilful murder but were convicted on the alternative charge of murder. Their convictions were based on circumstantial evidence. The prisoners however still claim that they were innocent.

(i) because compensation was purposely carried out to enable normalcy and peace in the village after the death of the deceased, and it had nothing to do with admissions or expressions of remorse by the prisoners;

(ii) because the prisoners continued to maintain their innocence both during administration of allocatus and in their pre-sentence reports; and

Manu Kovi v. The State (2005) SC789
State v. Eremas Kuvir (2015) N6035
State v. John Kanua Siune (2003) N5014
State v. Johnson Maurani (2008) N3560
State v. John Wanimba and Ors (2005) N2863
State v. Laurie Kamuel Paugari and Ors (2011) N4438
State v. Philip Bira (2009) N3633
State v. Todd Mari (2011) N4306
State v. Tupis Tom and Nathan Bobi (No. 2) (2009) N3675
Thress Kumbamong v. The State (2008) SC1017

1. ANIS AJ: On 19 July 2016, this Court found the five (5) prisoners (prisoners) guilty of the alternative charge of murder under section 300 of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. The Court then conducted a hearing for submissions on sentences on 25 August 2016. The Court reserved its ruling to a date to be advised. I do so now.

3. Briefly, the prisoners were found guilty of killing a deceased person by the name of Peter Migu (deceased). The prisoners and the deceased all come from the same village called Gunanur village in the Gazelle District of Rabaul in East New Britain Province. The killing occurred in the early hours on 26 October 2014. The Court found that the deceased was attacked by the prisoners when he stepped outside of his house that morning. No one saw the actual attack by the prisoners on the deceased outside his house. The prisoners were convicted by this Court based on overwhelming circumstantial evidence. There is a separate published decision on verdict, for this matter.

(i) Whether the punishment or head sentence imposed should be the same for the prisoners?

(iii) Whether each, some or all the prisoners should be granted probation and if so what probationary terms should be considered and applied?

5. Let me start with prisoner Lui Nicky. He is 21 years old and he is from Gunanur village of Gazelle in East New Britain Province. He did not receive any formal education and has never been formally employed. He is married and has a daughter who is three (3) years old. Only his mother is alive. He and his siblings are five (5) in total. He is the eldest.

"the Court found me guilty. I am at lost. I did not kill the deceased. I have no further things to say."

8. I turn to prisoner Giri Kivovon. He is 24 years old and is also from Gunanur village of Gazelle in East New Britain Province. Prior to committing this offence, he was second year student attending the Vunamami Vocational Centre in East New Britain Province. He has never been formally employed. He is single and his parents are alive. He and his siblings are seven (7) in total. He is the second born.

"I know that I did not kill Peter Migu. I am innocent in regard to the death. The Court has found me guilty and I am confused. I have nothing further to say."

11. The next prisoner is Darius Vokina. He is 32 years old and is also from Gunanur village of Gazelle in East New Britain Province. He completed grade 10 or high school in 2002. He attended the Port Moresby Technical College and graduated in 2005. He once worked as an auto mechanic with Gazelle Motors in East New Britain Province. He is married and has two (2) twin daughters who are five (5) years old. Only his father is alive. He and his siblings are six (6) in total. He is the second last born.

"I know that I have not killed the person Peter Migu. I am innocent in relation to the death. This Court has found me guilty and I am confused about it. I have nothing further to tell the Court."

14. The next prisoner is Benjamin Pidik. He is 22 years old and is also from Gunanur village of Gazelle in East New Britain Province. Prior to committing this offence, the prisoner was a grade 10 student attending the Utmei Secondary School in East New Britain Province. He has never been formally employed. He is single and his parents are alive. He and his siblings are five (5) in total. He is the second born.

"I know that I did not kill this person. I am innocent for the death of Peter Migu. I am confused when I was found guilty by this Court. I have nothing further to add."

17. The fifth prisoner is Tommy Noah. He is 50 years old and is also from Gunanur village of Gazelle in East New Britain Province. This prisoner has refused to give information regarding his education and work backgrounds. He said he is single. He said his parents are alive. He said he has 11 siblings in total. He said he is the third born.

18. The prisoner has no prior convictions.
19. During administration of allocatus, the prisoner had these to say:

"I know that I did not murder Peter Migu. I am innocent to this death. The Court has found me guilty. I am confused about it. This is all I have to say."

20. I note that both parties made submissions on the mitigating and aggravating factors. I have considered them. I will only set out the mitigating factors that I think and find as valid. In the present case, I only find one mitigating factor in favour of the prisoners, which is that the prisoners are all first time offenders. Compensation payment is normally regarded as a relevant mitigating factor. However, I have made it an exception for this case. I rule that it is not and cannot be regarded as a mitigating factor. I will explain that later below in my judgment.

21. In regard to aggravating factors, I will, in a similar fashion, only set out the aggravating factors that I think and find are valid. In this case, I list them as follows:

22. As it is shown above in my judgment, obviously the aggravating factors far outweigh the mitigating factor.

23. The prisoners were all found guilty of murder under section 300 of the Criminal Code Act. Section 300(1) states and I read:

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

24. I do not consider that the murder committed in this case should warrant the maximum penalty of life imprisonment. Life imprisonment is obviously a very serious penalty. I find that it should be reserved only for very serious circumstances in relation to crimes committed under section 300 of the Criminal Code Act.

25. The defence submits that the Court's power on sentence is discretionary. It refers to the Court's discretionary power under section 19 of the Criminal Code Act. It submits that each prisoner was found guilty based on sections 7 and 8 of the Criminal Code Act. The defence submits that the Court has found that the prisoners had aided and abetted each other in committing the offence of murder. The defence submits that the Court must consider and apply the principle of parity in sentencing [see cases: State v. Philip Bira (2009) N3633; State v. Johnson Maurani (2008) N3560]. The defence submits that because the evidence (which had been used convict the prisoners) was circumstantial, namely, that no one has seen what each of the prisoners had done to the deceased at the material time, each prisoner should receive the same or similar sentence.

26. In summary, the defence submits that considering the loss of life, a suitable prison term for each prisoner should be between 12 to 15 years imprisonment. The defence did not cite any case authorities in its submission.

27. The prosecution on the other hand submits that the aggravating factors far outweigh the mitigating factors. The prosecution submits that the prisoners had aided and abetted each other when they committed the crime. The prosecution agrees with the defence on the point that sentences to be imposed upon each prisoner should be the same following the principle of parity in sentencing.

28. The prosecution concludes and submits that the appropriate head sentences for the prisoners should be between 15 to 20 years imprisonment. The case authorities the prosecution relies or refers to regarding appropriate sentences are as follows: Kovi v. The State (2005) SC789; State v. Tupis Tom and Nathan Bobi (No. 2) (2009) N3675; State v. Todd Mari (2011) N4306; State v. Laurie Kamuel Paugari and Ors (2011) N4438; State v. Eremas Kuvir (2015) N6035 and State v. John Wanimba and Ors (2005) N2863.

29. I will approach sentences for this case following the approach as held by the Supreme Court in the case of Thress Kumbamong v. The State (2008) SC1017. In summary and on point, the Supreme Court therein re-emphasised the National Court's power on sentencing that is provided under section 19 of the Criminal Code Act. The Supreme Court said no tariffs set by a Supreme Court should dictate how a National Court is to or should fully utilise its powers under section 19 of the Criminal Code Act when the National Court is addressing or dealing with sentencing.

30. Now, I have considered the case law, that is, cases that have similar type facts or backgrounds. I have also considered the cases cited by the prosecution. In summary, I have selected and I will discuss three (3) cases, which I have found to be relevant for this case.

31. The first case is the case of State v. Todd Mari (supra). The prisoner led a mob of people to attack a deceased and his relatives. The deceased's left leg was almost severed with a bush knife. He later died from the said wound. The prisoner pleaded not guilty and a trial was conducted. The Court later found him guilty of murder. The prisoner did not actually cut the deceased but he was found guilty under sections 7 and 8 of the Criminal Code Act, that is, for his role in aiding and abetting and for forming a common intention, with the other attackers, to attack the deceased and his relatives. The Court sentenced the prisoner to 25 years imprisonment less the time he had spent in jail.

32. The second case is the case of State v. John Kanua Siune (2003) N5014. Two (2) prisoners therein had pleaded not guilty to murder. They were tried and later the Court convicted them of murder. It was a mob attack on one person. The deceased was suspected of sorcery and he was bashed to death. The Court held amongst others that the sentence range for mob killing with strong intentions to cause serious grievous bodily harm should be between 20 years to 30 years imprisonment. The Court sentenced both prisoners to 25 years imprisonment less the time they had spent in custody.

33. The third case is the case of State v. John Wanimba, Paul Gabi and Blasius Bana (supra). Three (3) prisoners therein were policemen. They had denied killing a deceased who was 16 years old. They were tried and later convicted of murder. The Court found that the three (3) prisoners, whilst as policemen, had seriously assaulted the deceased which has led to his death. The Court found that the prisoners had used a piece of stick to hit the deceased on his head. The Court also found that the prisoners had also kicked and punched the deceased on various parts of his body at the time of his arrest and at the police cell. The Court sentenced the three (3) prisoners to 25 years imprisonment less the time they had spent in jail.

34. Now, let me discuss my findings with the aid of these three (3) case authorities as I have referred to above in my judgment. Firstly, I agree with the submissions of both parties that sentences to be imposed upon the prisoners herein should be the same. I note that during the trial on verdict, the prisoners were convicted of murder, that is, of serious assaults that had led to the death of the deceased. The evidence was circumstantial but overwhelming against the prisoners. Now, because no one had seen how each of the prisoners had attacked the deceased and because of the fact that the prisoners themselves had opted to remain silent, it will be difficult for this Court to now determine or measure the degree of criminal culpability for each of the prisoners, to consider a fitting punishment for them as individuals. I also note that the prosecution had invoked and the prisoners were also found guilty, under sections 7 and 8 of the Criminal Code Act at the trial on verdict. That being the case, I will apply the principle of parity in sentencing to the present case.

35. Secondly, I have found above in my judgment that the aggravating factors far outweighed the mitigating factors. I also note and accept the prosecution's submission on this point. Let me consider them (i.e., mitigating and aggravating factors) in detail and I will begin with discussing the mitigating factors. The only mitigating factor noted by the Court is that the prisoners were all first time offenders. I do not think there is anything further to add to that except to say that this Court may give some concession to it when it is considering whether to reduce sentences for the prisoners. I note that the defence also alleges provocation in the non-legal sense as a mitigating factor in its written submission. However, I have dismissed that from my list. I note that the Court, in its written decision on verdict, did commented that provocation in the non-legal sense may have been possible when the deceased had stepped out of his house to investigate on that fateful day. But I note that that was only a suggestion made by the Court. There was no evidence adduced during the trial on verdict, which confirmed that the deceased had provoked the assault on him.

36. The defence also submits compensation payment as a mitigating factor in its written submission. Now, I have stated above in my judgment that I reject compensation as part of the mitigating factors for this matter. Let me explain: The prisoners' pre-sentence reports have been prepared and they were tendered in Court during the sentence hearing. The reports show that the prisoners and the Gunanur villagers have paid some form of compensation to the relatives of the deceased. According to the pre-sentence reports, the total compensation payments made were as follows:

37. I note that the compensation payments, based on the pre-sentence reports, were customary in nature, that is, they were paid to keep peace and reunite the people of the Gunanur village together because of the incident. I note that each prisoner in his pre-sentence report did not express remorse or regard the compensation as a means of accepting responsibility for his action. The prisoners instead have chosen and have continued to maintain that they are innocent, in their respective pre-sentence reports. The prisoners have also expressed similar sentiments during administration of their allocatus and I note that I have already covered these above in my judgment. But in summary and during administration of allocatus, the prisoners questioned and wondered how or why this Court was able to convict them in the first place.

38. For these reasons, this Court rejects or has rejected compensation as a valuable consideration to form or to be regarded as part of the prisoners' mitigating factors.

39. Now I note that the defence also submits as a mitigating factor, that is, non use of weapons. I have however rejected this, which was why it did not make it onto my list of the mitigating factors. Let me explain: The medical evidence that was tendered during the trial on verdict showed proof of weapons or objects being used against the body of the deceased during the time of the assault. No actual weapons were recovered at the crime scene. But that, in my opinion, did not mean that no weapons had been used during the actual attack.

40. I now turn to the aggravating factors. I will summarise them. This Court, in its written decision on verdict, found as follows: The prisoners had planned the attack. They surrounded the deceased's house. When the deceased stepped outside, the prisoners severely beat him causing grievous bodily harm to his body. The deceased suffered bruisers all over his body from both his front and back. The deceased's C-5 cervical spine (neck bone) was dislocated due to a powerful blow or force that was applied to the neck area of the deceased. The deceased suffered serious injuries to his internal organs namely his kidneys and lungs. Both his kidneys had bruises. His left kidney had internal lacerations, which meant that the deceased was hit with such a force enough to cause his left kidney to tear internally. And the same happened to the deceased's right lungs which had internal lacerations which was found to have been caused by application of a powerful force to the body. Both lungs of the deceased had blood cloths in them. Both lung cavities were filled with the deceased's own blood, which had prevented him from breathing normally. The deceased's chest had a marking of a blunt object, which was pressed against it. These injuries had caused the death of the deceased. In summary, the evidence, as found by the Court at the trial on verdict, showed that the prisoners had brutally attacked and murdered the deceased.

41. Thirdly, I note that the prisoners have not expressed remorse for their actions. They remain defiant to this day. This, in my opinion, demonstrates to this Court that the prisoners do not care one bit about their actions. It demonstrates that these prisoners would do anything to get away with the crime. It also demonstrates that the prisoners have no regard or respect for the law.

42. The prisoners had no right whatsoever to take away the life of the deceased. Even if the deceased was committing a crime, the laws of this country are clear. The least one can do is to apprehend and bring an accused person to the police to be charged and be prosecuted following due process. It is not the prisoners' business whatsoever to attack the deceased in the manner as they have done.

43. People who attack and senselessly kill a person especially where the person is killed at the heart of his or her home, in my opinion, should be severely punished. A person's home is supposed to be safe and free.

44. From the three (3) case authorities cited and discussed about in my judgment, I will firstly apply as a starting point a head sentence of 20 years imprisonment for the prisoners. Taking into account the aggravating factors which I have found to be serious, I will add an additional five (5) years to their sentences. This will increase the prisoners' sentences to 25 years each.

45. I note that the prisoners are first time offenders. I will therefore allow a deduction of two (2) years, which shall be applied to the prisoners' respective sentences.

46. Consequently and for the present case, I will impose custodial sentences of 23 years imprisonment on each of the prisoners.

47. Now I note that the pre-sentence reports recommended the prisoners as suitable for probations. I refuse to make any orders for probations for these prisoners. I do not find that this case warrants such orders. The prisoners were defiant from the start of the case to the very end where they all continued to maintain their innocence. In my opinion, such attitudes make them unfit persons to re-join the society early. The prisoners must now learn the hard way by serving their full prison terms in custody.

48. The prisoners were arrested and have been in custody as at 3 November 2014. I note that the Court's power to allow such deductions is discretionary under section 3(2) of the Criminal Justice (Sentences) Act 1986. I will exercise my discretion and make the deductions herein.

49. In relation to the first issue, that is, Whether the punishment or head sentence imposed should be the same for the prisoners? my answer is "yes".

50. In relation to the second issue, that is, What suitable punishment should be imposed on the prisoners? my answer is "23 years imprisonment with hard labour less the time the prisoners have spent in jail."

51. In relation to the final issue, that is, Whether each, some or all the prisoners should be granted probation and if so what probationary terms should be considered and applied? my answer is "none of the prisoners were granted probation and as such the issue is unattainable."

Length of sentence imposed	23 years
Pre-sentence period in custody to be deducted	1 year, 11 months and 16 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 15 days
Place of custody	Kerevat Correctional Service

Length of sentence imposed	23 years
Pre-sentence period in custody to be deducted	1 year, 11 months and 16 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 15 days
Place of custody	Kerevat Correctional Service

Length of sentence imposed	23 years
Pre-sentence period in custody to be deducted	1 year, 11 months and 16 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 15 days
Place of custody	Kerevat Correctional Service

Length of sentence imposed	23 years
Pre-sentence period in custody to be deducted	1 year, 11 months and 16 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 15 days
Place of custody	Kerevat Correctional Service

Length of sentence imposed	23 years
Pre-sentence period in custody to be deducted	1 year, 11 months and 16 days
Amount of sentence suspended	Nil
Time to be served in custody	22 years, 15 days
Place of custody	Kerevat Correctional Service

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor : Lawyer for the Prisoners

National Court of Papua New Guinea

State v Nicky [2016] PGNC 298; N6499 (20 October 2016)