N7309
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1089 & 1092 OF 2016

THE STATE

V

HERMAN ELIAKIM SAI & MORI JOE SIMBU

Kimbe: Miviri AJ
2018	: 7, 15 & 20 June

CRIMINAL LAW - Plea-Murder- S300 CCA – deceased security guard – shot in course of robbery – prisoners part of group – intent to cause grievous bodily harm – first time offender – youthful offender – serious aggravating offence–strong punitive sentence.

Facts

Prisoners were part of a gang that went to commit robbery during the course of which one of them shot the deceased, a security guard who died as a result.

Held:
   
1.	Aggravated armed robbery.
2.	Death resulting.
3.	Prevalence of offence.
4.	25 years IHL less time in custody deducted.

Cases Cited:

The State v Gimble [1988-89] PNGLR 271
The State v Gurua [2002] PGNC 41; N2312 
The State v Kama [2004] PGSC 32; SC740 
The State v Lahui, Hetau, Noho, and Eki [1992] PNGLR 325 
The State v Manu Kovi [2005] PGSC 789 
The State v Nimagi [2004] PGSC 31; SC741 

Counsel:

L. Jack & P Bannister, for the State
D Kari, for Defendant
					
DECISION ON SENTENCE
20th June, 2018 

1.	MIVIRI AJ: This is the sentence of Herman Eliakim Sai and Mori Joe Simbu both charged that they on the 4th March 2016 at Kimbe, in the course of an armed robbery shot one Blasius Pinda intending to cause him grievous bodily harm and he died, contrary to Section 300 (1) (b) Criminal Code. 

Brief Facts on Arraignment

2.	The prisoners accompanied others armed with homemade guns and knives intending to hold up “Global Real Century Mart” at Morokea, Kimbe, West New Britain. On the morning of the 4th March 2016 they entered the shop pretending to be shoppers. As soon as their accomplices entered they held up the employees and owners stealing from them a boom box music player valued at K19.90, a school bag valued at K29.90, a pair of black jeans valued at K23.90, altogether valued at K 73.70 all the property of Global Real Century Mart.

3.	Blasius Pinda employed as a security guard there was held up by the accused. He was told to sleep on the ground.  One of the accused shot him with the homemade gun as he lay on the ground. He suffered serious injuries and died as a result. 

4.	The State invoked Section 300 (1) (b) of the Criminal Code against each of the prisoners and invoked also section 7 and 8 that they aided and abetted each other in the crime.

5.	Section 300 of the Criminal Code is in following terms:

(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;
(b) 	if death was caused by means of an act–

(i) 	done in the prosecution of an unlawful purpose; and
(ii) 	of such a nature as to be likely to endanger human life;
(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);

(d) 	if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e)	 if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.

(2) 	In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3)	 In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.
(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) 	did not intend to cause death; or
(b) 	did not know that death was likely to result.
Plea

6.	Both Prisoners pleaded guilty confirmed by the material tendered. There was no self-defence or provocation asserted. Defence did not raise nor pursue.

Issue

7.	What is an appropriate sentence for the prisoners?

8.	Parliament has prescribed the penalty under Section 300 (1) (b) of the Criminal Code the maximum of life years, which is subject to section 19 of the Code the exercise of which is discretionary. It is dependent on the facts and circumstances of each particular case. The present case is not the worst case of its kind and will draw a determinate term of year’s imprisonment. Both prisoners were part of the group that discharged the homemade gun killing the deceased. In law because they are part of the group they are liable in law for the murder of the deceased. In Gimble v The State [1988-89] PNGLR 271 at 273:

 “The general rule is that all active participants in the crime shall be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watch man outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated”

9.	By this both prisoners were active participants in the crime. There is no evidence that they disassociated themselves from what was happening. What arose is a direct and foreseeable consequence of what they set out to be part of. Homemade guns were taken for a purpose not a distant and remote possibility that a person either a victim or one of the robbers would be killed or maimed or disabled as was here done. It was reasonably foreseeable that there would be resistance to the stealing of the motor vehicle in Lahui, Hetau, Noho Eki, The State v [1992] PNGLR 325 (3 August 1992) and there would be killing or  serious injury emanating. The court sentenced all in the murder to life years imprisonment.

Mitigation

10.	Both prisoners have pleaded guilty to a very serious offence. Herman Eliakim Sai is 19 years old at time of sentence today. He was 17 years old at time of the offence. He is resident at section 21 Arowe Camp and is of the AOG church. He was educated at Karl Hesse Primary School up to grade 8 level 2016. And has no record of employment. He is a first offender.

11.	Mori Joe Simbu is 17 years old at the time of the sentence. He was 15 years old at time of the offence.  And is resident at section 21 Bush Camp. He is educated to grade 7 at the Karl Hesse Primary School 2016. He is also a first offender. 

12.	Both offenders are youthful offenders and Counsel defending has applied for Presentence and Means Assessment Report to assist in the deliberation of the sentence. He further submits that the maximum sentence of life years be not imposed but a determinate term of years be imposed. The evidence discloses that they were there in the group that robbed this store and in the course of which one of them shot and killed the security guard with the homemade gun. Herman Eliakim Sai in the record of interview to Police dated the 5th March 2016 stated:

 “I was with Peter Pius, Kuses Roger, Joe Mori (Simbu), Jimmy (East Sepik), O’Neil Padio and Vincent Peter Kotkot and we committed the robbery at Century Mart on Friday 4th March 2016 between 8am and 9am. O’Neil with Kuses and Jimmy were armed with guns. O’ Neil used a pop gun, Kuses used a stapler gun and Jimmy had a pop gun. When they held up the guards we ran inside the shop and we were to take the money and stuff like phones. I went over the counter and picked a bag and put a boom box inside. I was doing this when I heard the gun shot go off and I ran outside. I ran outside and saw O’ Neil standing at the door and a security guard on the floor. We then all ran out and at the back of the shop and at the back of Morokeya village and back to section 21. At Section 21 we split apart. Mori with Jimmy, O’ Neil, Kuses, Kotkot went to a place at section 21 called 525 and I with Peter went to Arowe Camp. Kuses gave me and Peter the Stapler gun with four rounds and Peter went and hid it. I gave the bag with the boom box to Olian at the house and we stayed at the house at Arowe Camp. Peter and I went up to Peter Pius’s house on the mountain and were cooking tapiok on the fire. It wasn’t very long when David Kana and some youths came and told us to surrender to the Police because the security guard O’ Neil shot was dead and and the Talasia will come to section 21 and attack us. It was then both Peter and I surrendered to Police and I am now giving my statement. The Police then asked for the gun and the cartridge and the bag and the boom box and both Peter and I went with the Police back to section 21 where we gave these things. It was the stapler gun only. The Cartridges, bag and boom box, the police left word for the leaders at section 21 to pick up these items and hand them over”

Question 13. Give the names of those you went with to rob Century Mart? Answer: Peter Pius, Kuses Roger, Joe Mori (Simbu), Jimmy (East Sepik), O’ Neil Padio, Vincent Peter Kotkot and me”

“Question 14. Is it correct that both you and Peter had a stapler gun with four rounds and a boom box and bag you had taken? Answer: Yes that is correct.

Question 15. What did you take from the shop? Answer: I only took the boom box and the bag. Nothing Else.

Question 16. Who shot the Security Guard called Blasius Pinda who died as a result? Answer: O’ Neil Padio.”At the end of the record of interview the prisoner signed the record of interview.
 
13.	In his record of interview Joe Mori Simbu on the 5th March 2016 stated to Police:

 “Question 12. Can you tell me your story how you surrender to Police and how you and your friends committed the arm robbery? Answer: Myself, Peter Pius, Mori Joe, Kuses Roger Augus, Jimmy (East Sepik), O’Neil Padio and Vincent Peter Kotkot committed the armed Robbery at Century Mart, yesterday on Friday 04th of March 2016, between 8.00am to 9.00pm in the morning. I was at my house and Kuses Roger Augus arrived at my home with Peter Lomos, Herman Eliakim, Jimmy from Sepik and Kotkot. We all sat under house chicken belonging to the governor’s project which David Kanai looks after it. We made a plan under the house for tomorrow’s robbery at Global Real Century Mart so we had a discussion and we went to sleep inside the house chicken until the early hours of the morning, on the next day we walked down to Kisere and hoped onto a route number 2 PMV bus, it was about 6.00am and Roger Kuses paid for our bus fees for K2.00 so we drove to Morokea at Global Real Century Mart next to Nivani Headquarters Limited. We arrived there and Vincent Kotkot and I went first into the store to spy the Chinese and his employees and at the same time the boys came into the store namely 1. Herman, he was holding a bush knife 2. Peter Lomos Pius, he was holding a grass knife 3. O’Neil, he was holding a homemade pop gun 4. Jimmy (Sepik), he was holding a homemade pop gun 5. Kuses Roger Augus, he was holding a homemade gun (stapler gun). And when we robbed the store the Chinese man was already after so he got the spray and spray it on our faces and the other Chinese got the long bush knife chased us out of the Store so we all ran out of the Store. And O’Neil Padio was standing outside of the store and pointing the gun at the security guard and at the same time he shot the security guard and we all ran to the bus stop and then we all ran away together. We all ran away to Section 21 and O’Neil gave Kotkot the homemade pop gun where he used it to  kill the security guard and he went home. The other homemade pop gun Jimmy took it and ran away with it. And Peter himself was holding onto the homemade stapler gun and gave it to the smaller boy from Arowe and he went and hide it in the flower garden. We all slit it up and Kuses Roger Augus, Kotkot Vincent and I ran away up to the mountain and hide. I was wearing a black T Shirt and black Jean trousers and I ran away and police apprehend us.

Question13. Give the names of the boys you were with and the Police arrested all of you? Answer: Myself, Kotkot Vincent and Roger Kuses Augus.  Question 14 Look at this knife (Show exhibit Knife to the Accused) Is it this knife belongs to you? Answer: Yes. Question 15. See this bush knife (showing exhibit knife to the Accused) Is it true that you brought us up to your house and you got this knife? Answer: Yes. Question 16. What did you guys took from the store? Answer: One bag and a music boom box. Question 17. Who shot death the security guard namely Blasius Pinda? Answer: O’Neil Padio. Question 18. Is it true you, Herman, O’Neil, Kuses Roger Augus, Jimmy, Kotkot, and Peter went and committed armed robbery at Century Mart? Answer: Yes. Question 19. Who gave you this cartridge? Answer: Mission Sonkor gave Kuses Roger this 3x cartridge 2x buck shot cartridge green and 1x cartridge buck shot red.

And the prisoner acknowledged the record of interview adopted it and signed it acknowledging.

14.	There is preparedness as in Manu Kovi v the State [2005] PGSC 789 (31. May 2005) where the prisoner had bought a brand new short bush knife, got on a bus and followed his wife the deceased to the Islander section of waigani road. He got off the bus that he was in and got in the bus where his wife was. Inside he stabbed her repeatedly in view of all who were in the bus until he was stopped, but by then his wife was losing blood and died as a result. This is a robbery as was the case of Lahui, Hetau, Noho and Eki, The State v (supra) where the victim of the robbery is killed in the course of the robbery. Life sentences were imposed where trial was conducted where the victim was dragged entangled in the seat belt of the car that the prisoners stole through the suburb of Hohola in Port Moresby. Here both prisoners have pleaded guilty and were aged 17 and 15 years respectively at the time of the offence. They will be given consideration in the sentence passed in view of the gravity of the offence.

15.	This case is likened to State v Gurua [2002] PGNC 41; N2312 (11 December 2002) where in the course of an armed robbery the victim who tried to stop two of the robbers from taking his teenaged daughter was shot by one of them. Trial was conducted and 50 years IHL was imposed upon the two that aided and abetted each other in the shooting of the deceased. Twenty (20) years IHL was imposed on the other who was guarding a victim unknown to him while the other two shot the deceased. The court differentiated in that he was not aware nor was he part of what the two who shot the deceased did. Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) confirmed the sentences imposed. That is not the case here, all were there together in the course of which one of them shot and killed the security guard. There was no disassociation from that offence by the prisoners. It is a similar situation as in Kama v The State [2004] PGSC 32; SC740 (1 April 2004) where it would fall into category three where 31 years to life imprisonment because of the use of dangerous weapons such as firearms as here. In my view this should also be balanced out with the fact that the prisoners surrendered to law and have in this court pleaded guilty saving time and administration in the dispensation of Justice. And it is not remote that they were with others who were influential which I take account in the sentence today. The range submitted by State counsel of between 16 to 31 years is proportionate given the facts and circumstances of this case.

16.	Counsel have conceded in accordance with Manu Kovi (supra) that the case fell into the top end of the second category of murder cases in that, there was strong intent to do grievous bodily harm, and weapon was used here a homemade gun and there was preplanning, with some element of viciousness drawing 16 to 20 years IHL. Further category 4 where life years imprisonment is also invoked because this was death in the course of another serious offence. 

17.	Life is sacred and its sanctity derives from principles of Christianity enshrined in Our Constitution recognizing Papua New Guinea as a Christian country one of the fundamental rights under which is the right to life under section 35. The offence is also a very prevalent offence not only here in Kimbe West New Britain Province but all throughout the country. Human life has become cheap. 

Sentencing Trend Tariff 

18.	I now consider what the courts have had to impose following Manu Kovi and the general sentencing trend and tariff in Nimagi v State (supra) the prisoner appealed against a 50-year sentence that was imposed by the National court sitting in Bulolo where in the course of a holdup a teacher was shot dead as he tried to rescue his daughter who was taken away by the defendant and others who accompanied him. The court convicted after trial and imposed 50 years IHL. The defendant appealed from that sentence to the Supreme Court. The court dismissed the appeal holding that too much emphasis was placed on youthfulness which should not be guised to sway the full affront of the sentencing discretion. The court adopted the words of the trial judge:

 "I believe that young criminals cannot continue to hide behind the cloak of youthfulness in order to get away with very serious violent crimes. I do not, for one moment, say that youth is no longer a mitigating factor, because it still is. However, in a very serious violent crime such as this one, the plea of youthfulness would lose its significance." 

19.	That is clearly applicable here where prisoners are both 17 years in the case of Herman Eliakim Sai and 15 years for Mori Joe Simbu. This is a crime of violence very well planned out by these two prisoners with others where dangerous weapons are used with instant death to the security guard. The aggravation outweighs the mitigation including their age. I adopt Nimagi’s case (supra) as basis to impose a custodial term consistent with the sentencing tariff and trend set out in Manu Kovi (supra) of category two but also considered in the light of Kama v The State (supra) helpfully set out by State counsel which I have alluded to above and is applicable here.

 Sentence

20.	The present offence arises from an armed robbery in the course of which the deceased security guard was shot dead by one of the robbers. Like offence must be treated alike. In this regard I do not find any fact or circumstance apparent or identifiable to differentiate the sentence of the prisoners from any other some of which I have attempted to illustrate above. Further there are no extenuating circumstances to deviate other than what is the normal tariff and range in like circumstances. Aggravation outweighs mitigation and the guilty plea will not sway otherwise than the sentence here proportioned of 25 years IHL. And I so impose that upon the prisoners, I deduct the time in custody forthwith and they will serve the balance remaining forthwith.

21.	25 years IHL less time in custody, balance to be served in Jail.
Orders accordingly.
________________________________________________________________
Public Prosecutor	: Lawyer for the State		
Public Solicitors	: Lawyer for the Defendant