N8597
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 1043, 1044, 1045, 1048, 1050, 1051, 1053, 1054, 1056, 1060, 1061, 1062 AND 1063 OF 2016

THE STATE

V

WILLIAM LARE, CAMILUS MARKUS, ALWINUS EMIL, NATHAN THOMAS, ALPHONSE LARE, NERIUS KUANG JNR, NATHANIEL KENMI, JOSHUA BRUNO, PASKALIS LARE, BRIAN BURE, BONIFACE RAPHAEL, BERRY BRUNO and JONAH BRUNO
(NO 2)

Kokopo:  Anis J
2019:  17th & 18th September
2020:  22nd October (Kerevat)

CRIMINAL LAW – wilful murder – section 299 – Criminal Code Act Chapter No. 262 –Sentencing – consideration – whether death sentence should be imposed – whether regard should be given for lesser sentences for the use of early confessional statements – exercise of discretion – whether sentences should be served cumulatively or concurrently

Cases Cited:

State v. William Lare and 13 Ors (No. 2) (2019) N7909
Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona& Greg Kavoa v The State (2006) SC836
State v. Moses Nasres (2008) N5465

Counsel:

Ms J. Batil, for the State
Mr E. Paisat, for the 13 co-prisoners

SENTENCES

22nd October, 2020

1.	ANIS J:	The 14 prisoners were convicted on 2 counts of wilful murder on 15 July 2019.  One of the prisoners escaped after conviction.  Administration of allocatus and presentation of submissions were conducted on 17 and 18 of September 2019.  I reserved my ruling on sentences to a date to be advised.

2.	This is my ruling. 

BACKGROUND

3.	On 4 April 2019, the State presented 3 separate indictments against 18 co-accused.  The names of the 4 co-accused who were subsequently discharged from this proceeding on 19 May 2019, were Francis Suang, Blasius John, Bart Talcicius and James Oscar.  See case: State v. William Lare and 17 Ors (2019) N7851.  I summarise the 3 indictments as follows:

Indictment No. 1:	2 counts of wilful murder of Bernard Mursing and Ereman Kle against each of the then 18 co-accused;
Indictment No. 2:	1 count of attempted to unlawfully kill one Patrick Tentau against each of the 18-co accused; and 
Indictment No. 3:	9 counts of wilfully and unlawfully setting fire upon houses that belonged to 9 families, that is, against each of the 18 co-accused.

4.	The State opted to trial the first indictment, that is, for the wilful murder of Bernard Mursing and Ereman Kle (the 2 deceased).  The charges in the first indictment were brought under section 299 of the Criminal Code Act Chapter No. 262 (Criminal Code).  The State informed the Court that the remaining 2 indictments will be presented before a separate Court after and determination of the indictment on the 2 counts of wilful murder.

5.	The facts upon which the 14 prisoners were found guilty of were as follows, and I read from the brief facts which had been presented by the State and based upon which the prisoners have been found guilty of: 

1.	On Wednesday the 20th of January 2016, between 4am and 8am the accused persons namely, William Lare, Alwinus Emil, Alphonse Lare, Paskalis Lare, Camilus Markus, Francis Suang, Nathan Thomas, Bart Talsisius, James Oscar, Brian Bure, Boniface Raphael, Berry Bruno, Jonah Bruno, Nerius Kuang Jr, Blasius John, Nathaniel Kenmi, Joshua Bruno and Kaluban Casper who are from Merai and Urai Villages were seen at Mak and Sumsum Villages in the Sinivit LLG, Pomio, East New Britain Province.
2.	It is alleged that on that date, place and time, the accused persons, attacked, the Sulka people living at Mak Village in the Sinivit LLG, Pomio District, killing two men namely Bernard Mursing and Ereman Kle.
3.	The accused persons were armed with stones, sling shots, bush knives, axes and sticks.  They were seen kicking the door open to Bernard Mursing’s house and attacking him by chopping him to death.
4.	The accused persons then left Mak Village and went to the neighbouring Sumsum Village.  When they came back, they attacked some boys in a boy-house, and killed Ereman Kle by chopping him to death.
5.	The State alleges that the actions of the accused persons contravene section 299 of the Criminal Code in that they each and severally wilfully murdered Bernard Mursing and EremanKle.
6.	The State invokes section 7 of the Criminal Code in that the accused persons aided and abetted each other in the commission of the crime.
7.	The State further invokes section 8 of the Criminal Code in that the accused persons had formed a common intention to attack the people of Sulka and destroy their properties and in the prosecution of that unlawful purpose they killed Bernard Mursing and Ereman Kle.

6.	Before administration of allocatus, prisoner Kaluban Casper escaped from custody at the Court precincts at the Kokopo National Court.  A warrant of arrest was issued on the same date of his escape on 17 September 2019.  For this reason, his sentence hearing has been postponed until such time of his re-capture.

SENTENCING CONSIDERATIONS

7.	I begin with prisoner William Lare. He is 41 years old.  He was 37 years old at the time of arrest.  He is a subsistence farmer and is married with 3 children.  One of his children is attending primary school whilst the other 2 are yet to attend school.  The prisoner was educated up to grade 10 in high school.  The prisoner has no prior conviction.  During allocatus, the prisoner had these to say.  He denied committing the offences.  He said he has a wife and 3 children.  He said he also has an old mother that he takes care of.  He said if he is put in prison, he does not know who will look after his family and old mother.

8.	The second prisoner is Camilus Markus.  He is 46 years old.  He was 42 years old at the time of arrest.  He is a subsistence farmer and is married with 7 children.  Five of his children are attending school.  The prisoner was educated up to grade 6 in primary school.  He has no prior conviction.  During allocatus, this is what he had to say.  He denied committing the offences.  He expressed concerns for the wellbeing of his wife and children and said there is no one to look after them or take care of their financial needs if he is put in prison.  He said he does not want to go to prison for the crimes that he did not commit.

9.	The third prisoner is Alwinus Emil.  He is 42 years old.  He was 38 years old at the time of arrest.  He is a subsistence farmer and is married with 2 children.  Both his children are attending school.  The prisoner was educated up to grade 6 in primary school.  He has no prior conviction.  At allocatus, he said these.  He denied having committed the offences.  He expressed concerns that no one will take care of his children in terms of education, gardening, housekeeping and maintenance. 

10.	The fourth prisoner is Nathan Thomas.  He is 41 years old.  He was 37 years old at the time of arrest.  He is self-employed as a chain saw operator, and he is also a subsistence farmer.  He is married with 1 child who is attending school.  The prisoner was educated up to grade 4 in primary school.  He has no prior conviction.  At allocatus, the prisoner said these.  He said that his parents are old and that he takes care of them with his family.  He said he also takes care of his sister and her son who lives with them.  He also said that he has blocks of land where he grows betel nut and coconut trees, and he is concerned that no one will look after these blocks if he is sentenced.

11.	The fifth prisoner is Alphonse Lare.  He is 48 years old.  He was 44 years old at the time of arrest.  The prisoner is a subsistence farmer and is married with 7 children.  Five of his children attend school whilst 2 of them are not of schooling age.  He was educated up to grade 6 in primary school.  The prisoner has no prior conviction.  At allocatus, he said these.  He denied committing the offences.  He said he has a wife with children to look after.  He said he also has an old mother that he looks after as well in the village.  He is concerned that no one will look after them in terms of building their house, making gardens and earning money for them.  He said he has 2 blocks of land, one consists of betel nut trees and the other, coconut trees.  He said if he is imprisoned, there will be no one left to look after the 2 blocks.

12.	The sixth prisoner is Nerius Kuang Junior.  He is single and 22 years old.  The prisoner was arrested at the age of 18 years.  He was educated up to grade 4 in primary school.  The prisoner has no prior conviction.  At allocatus, he said the following.  He said that he is married and has children.  But I note that in his pre-sentence report, he said that he was not married.  He said his father has died and his mother is of old age.  He said he has 3 blocks that he manages, one is a cocoa block, the second is a coconut block and the third, a betel-nut block.  He said he is concerned that no one will look after his family when they are sick.  He said that he does not want to go to prison for something that he did not do.

13.	The seventh prisoner is Nathaniel Kenmi.  He is 41 years old.  He was 37 years old at the time of arrest.  He is a subsistence farmer and is married with 4 children.  Two of his children started schooling whilst the other 2 are below schooling age.  He was educated up to grand 7 in high school.  He has no prior conviction.  At allocatus, he said the following.  He said that in the eyes of the Court, he did not commit the offences.  He said there is no one who could support his family to make gardens or assist them financially if they fall sick.  He said he has 2 coconut blocks, and he is concerned that there will be no one to look after them if he is sent to prison.  He also said that he has 2 fathers who are of old age.  He said his small father has a disability.  He said he does not want to be sent to prison for something that he did not commit.

14.	The eight prisoner is Joshua Bruno.  He is 41 years old.  He was 37 years old at the time of arrest.  He is a subsistence farmer and is married with 3 children.  All his children attend primary school.  He was educated up to grade 4 in primary school.  He has no prior conviction.  At allocatus, he said the following.  He said that in the eyes of the Court, he did not commit the offences.  He said he has 2 old parents and he is concerned that no one will look after them if he is sent to prison, that is, to do their gardening or take care of them when they are sick.  He also said that he has 1 betel-nut block and 1 coconut block, and he is worried that no one will take care of his blocks if he is sent to prison.

15.	The nineth prisoner is Paskalis Lare.  He is 51 years old.  He was 47 years old at the time of arrest.  The prisoner is a subsistence farmer who is married with 6 children.  Two of his children have completed school.  The other two are attending high school whilst the last born is an infant.  The prisoner was educated up to grade 8 in high school.  He has no prior conviction.  At allocatus, he said the following.  In the eyes of the Court, he said that he was telling the truth.  He said that he has an old mother to look after as well as his family in terms of gardening and financial support.  He also said that he has 1 coconut block and 1 betel-nut block to look after, and he is concerned that no one will look after them.  He said he does not want to go to jail for offences that he did not commit.

16.	The tenth prisoner is Brian Bure.  He is 23 years old and is a subsistence farmer.  He was 19 years old at the time of arrest.  The prisoner is not married.  He was educated up to grade 8 in high school.  He has no prior conviction.  At allocatus, he said the following.  He said what he is telling this Court is the truth which is that he was not involved in committing the offences.  He said that his father is deceased and has left behind his mother and 2 brothers.  He said that there is no one left who could look after them.  He said he also owns 1 block of betel-nut trees and 1 block of coconut trees.  He said he is concern that no one will look after his blocks.  He said that he does not want to be sent to prison for the crimes that he did not commit.

17.	The eleventh prisoner is Boniface Raphael.  He is 52 years old.  He was 48 years old at the time of arrest.  He is a subsistence farmer.  The prisoner was married.  From the said marriage, they had a son.  His wife died later of illness.  He looks after his son and provides for him.  His son attends primary school.  The prisoner was educated up to grade 8 in high school.  He has no prior conviction.  At allocatus, he said the following.  He said that he is telling the truth to the Court.  He said that his wife has died and that he is the only person who is providing for their son.  He is worried that no one will look after his son in terms of his well-being and school fees.  He said he owns 1 block of betel-nut trees, 1 block of coconut trees and 1 block of cocoa trees.  He said that he does not want the Court to send him away to prison over something which he did not commit.

18.	The twelfth prisoner is Berry Bruno.  He is 34 years old.  He was 30 years old at the time of arrest.  The prisoner is not married and is a subsistence farmer with no educational attainment.  He has no prior conviction.  At allocatus, he said the following.  He said that he is telling the truth in the eyes of the Court.  He said he was not involved in the trouble.  He said that both his parents are old and that there is no one who could look after them or provide for them in terms of earning money or making gardens.  

19.	The thirteenth and final prisoner is Jonah Bruno.  He is 41 years old and is a subsistence farmer.  He was 37 years old at the time of arrest.  He is married with 3 children.  All his children attend primary school.  The prisoner was educated up to grade 4 in primary school.  He has no prior conviction.  At allocatus, this is what he said.  He said in the eyes of the Court, that he was not involved in committing the offences.  He said he is the only one that provides for the family in terms of financial support and their well-being.  He said he also does gardening, for the family.  The prisoner said that he also takes care of his parents who are very old.  He said he does not want the Court to send him to prison for something that he did not commit.

AGE ISSUES

20.	The pre-sentence reports of prisoners Nerius Kuang Junior and Brian Bure, say that the prisoners were juveniles at the time of their arrest.  The reports state, amongst other things, that they should be regarded as juveniles.  

21.	I give less or no regard to these findings.  The ages of the 2 prisoners were not issues at the trial nor were they raised by the State or the defence.  And I note that at the time of their arrest, the 2 prisoners were 18 years old and above.  As for Nerius Kuang Jr, evidence that had been adduced, namely, his confessional statement and record of interview (exhibits P17 and 32) confirms this fact.  And as for Brian Bure, he discloses his age as 19 years old, in his record of interview (Exhibit P25) which had also been adduced in evidence.

MITIGATING/AGGRAVATING FACTORS

22.	This was a mob or group attack by one village upon the other. Many people were involved, that is, people from Merai and Urai villages attacked their neighbouring villages, that is, Mak and Sumsum villages, in Pomio of East New Britain Province.

23.	Details of the attack are set-out in my decision on verdict which is State v. William Lare and 13 Ors (No. 2) (2019) N7909.

24.	The aggravating factors (and mitigating factors), in my view and under the circumstances of the matter, should be assessed together or collectively (i.e., upon all the 13 prisoners).  They are, (i), mob or group attack, (ii), the attack was well planned or organised, (iii), use of deadly weapons such as clubs, sticks, stones, sharp objects, knives and bush-knives, spears, sling-shots and axes, (iv), created chaos and fears caused to the villages that were attacked, (v), severe injuries or cuts inflicted on the bodies of the 2 persons that were killed, (vi), execution type killing of the two deceased and (vii), road blocks or barricades that were put in place thereafter to prevent police from entering and investigating the incident immediately after.

25.	The mitigating factors are not many in my view.  They include co-operation with police, surrendering of the suspects and co-operation given from the time of arrest to the date of hearing, complying with their bail conditions, and the fact that this was a one off incident and none of them had any prior convictions.

26.	I make mention here that I may also give regard to confessional statements that had been given by 2 of the prisoners, namely, Nathan Thomas and Nerius Kuang Junior.  They had been tendered as exhibits P30 and P32.  In my view, and where necessary, they may be considered favourably for the 2 prisoners.

EXTENUATING CIRCUMSTANCES

27.	Evidence that had been adduced suggest that there had been animosities between the villagers where the prisoners come from namely the Merai and Urai villagers (who are also known as the Bainings), and the Mak or Sumsum villagers (who are also known as the Sulkas).  The Bainings blame the Sulkas for many of the law and order problems which they say had been committed upon them by the Sulka people over the years.  The Bainings claim that attacks or harassments on their fellow men and women became constant over the years which eventually led to the raid that they had conducted on the 20th of January 2016.

28.	Their plan appeared well organised, that is, their attack on the Sulka people of Mak and Sumsum villages.  It appeared to have been organised by some of the elders or leaders of the Merai and Urai villages.  The prisoners, including their fellow villagers, carried out the attack based on the plan and encouragement that they had received from these so-called leaders of the Bainings, of the 2 villages.

29.	I find these considerations relevant; that they amount to extenuating circumstances, which I believe should be taken into account.  These factors are real and exist in Papua New Guinea (PNG).  Cultural practices within the various or vast number of communities in PNG including the practice of respect to the elders or leaders and to carry out their wishes or directions, are real and exist as part of the cultures; they are therefore not things that should be discarded or avoided from considerations as if they do not exist.

PENALTY FOR WILFUL MURDER

30.	As stated, the prisoners were found guilty of 2 counts of wilful murder under s. 299 of the Criminal Code.  It reads:

299.	Wilful murder.

(1)	  Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	  A person who commits wilful murder shall be liable to be sentenced to death.

31.	The 13 prisoners are therefore liable to be sentenced to the maximum penalty which is death.  The prosecution has asked the Court to consider imposing the maximum penalty, that is, the death penalty for their crimes of committing 2 counts of wilful murder.

32.	The defence has submitted otherwise and has called for lesser sentences to be imposed upon the 13 prisoners.  The defence submits that although the case is in the most serious category, that a lesser sentence should be considered based on the circumstances of the case.

COMPARABLE CASES

33.	The Supreme Court, in Manu Kovi v The State (2005) SC789 and in Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836, give useful guides in categorising sentences for different types of homicide cases.  I would adopt the summary of these cases as stated by Justice Cannings in State v. Moses Nasres (2008) N5465, as follows:

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE 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-mediation or pre-planning – minimum force used – absence of strong intent to kill 	15-20 years	
2.	Trial or plea – mitigating factors with aggravating factors	Pre-planned, vicious attack – weapons used – strong desire to kill	20-30 years	
3.	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill	Life imprisonment	
4.	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death	

……

The Ume guidelines 

14.  In Ume three men were convicted of the payback killing in 1995 of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, eg suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender’s degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped. The Supreme Court suggested that the death penalty may be considered appropriate if the case matched one of these descriptions:

·	A pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless 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, conscious-less, senseless, pitiless and unnecessarily torturous (see Profitt v Florida 428 US 249).

·	The crime was committed by a persistent, violent, wicked-tempered person with the utmost ferocity and with cunning (see R v Peter Ivoro [1971-72] PNGLR 374).

·	The offender’s culpability is so grave as to deserve 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 are so grave and reprehensible that the offender is undeserving of a chance to live their own life, and instead, it is only just and fair that they pay for the crime with their own life.

·	The offender’s banishment from the community is the only just and appropriate punishment for the crime in all the circumstances.

15.  As to the facts that would warrant the death penalty and without being exhaustive the Supreme Court suggested:

1	The killing of a child, a young or old person, or a person under some disability needing protection.

2	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties eg a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3	Killing of a leader in government or the community, for political reasons.

4	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery.

5	Killing for hire.

6	Killing of two or more persons, in a single act or series of acts.

7	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.

8	The offender has prior conviction(s) for murder.

CONSIDERATION

34.	I am guided by the above principles and considerations, as held by the Supreme Court in the 2 cases.  Let me begin by saying that I propose to apply similar sentences for a majority of the prisoners.  This was a planned and group attack.  And the prisoners were convicted based on circumstantial evidence.  Each of them played a role in carrying out the acts of brutal and wilful murders of the 2 deceased persons in Mak village in the morning of 20th January 2016.  That said, I will qualify the application of same or similar sentences in relation to prisoners Nerius Kuang Jr and Nathan Thomas, as I will later explain below.

35.	I must also express my satisfaction and appreciation to Ms Batil, counsel for the State.  I refer to her Supplementary Written Submission filed on 18 September 2019.  Counsel has assisted with comparative and relevant case authorities which I have also taken into account for this purpose.  Regrettably so, I must say that limited assistance was received from counsel for the co-prisoners.  Having said that, I have taken into account counsel’s brief submissions as presented and filed.

36.	When I apply the case authorities together with the 2 Supreme Court cases, the 13 prisoners, in my view, easily fit into the death sentence category.  I make specific reference to some of the considerations as stated in Steven Ume’s case, which I find or note, appears to align with or match the facts of the present case, namely,

-	A pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless 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, conscious-less, senseless, pitiless and unnecessarily torturous (see Profitt v Florida 428 US 249)
……
-	Killing of two or more persons, in a single act or series of acts.

37.	These factors, in my view, are featured in the present case.  The attack by the Bainings upon the Sulka people was well planned.  It was executed as a dawn raid when the Sulka people were still asleep or were just waking up in their villages.  The 2 deceased were murdered senselessly without any reason or perhaps based on a general misconceived perception of hate by the Bainings of the Sulkas that were living in the 2 villages.  No regard was given to the sanctity of human life, by the prisoners and their fellow attackers, when they converged upon the Sulka villages, attacked the men and women there, and when they murdered the 2 men.  The killing was also torturous.  The limbs of the 2 men were cut so they had obviously suffered tremendous pain before they died from their injuries.  Details of their injuries are explained in my separate ruling on verdict.  And the killings occurred in a series of acts, that is, by the prisoners and members of their villages, on Mak and Sumsum villages.  Again, these are explained in the separate ruling in my earlier decision on verdict.

38.	Having said all that, I now turn my attention to the 4th category as pleaded in Manu Kovi that may warrant imposition of death sentence.  And I ask myself this.  Can I describe the present case as, and I quote, Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence?  

39.	I would answer that in the negative.  This case may be described as a worst type of case.  The double wilful murder of Bernard Mursing and Ereman Kle may be regarded as a special aggravating factor.  But I do find existence of extenuating circumstances, and I state them above in my decision.  I also note that there are mitigating factors as I also state above in my decision.  The other factor that I think should also be highlighted as well, is the fact that the convictions are based on circumstantial evidence.  It was a group or village attack and the 13 persons that this Court has convicted, were amongst others or part of a much larger group and because of that, there may be others who may have gotten away scot-free for the same crimes.  In my view, to disregard this factor or consideration in sentencing, may be regarded as unjust.

40.	I take all these factors into consideration.

SENTENCES

41.	In conclusion and as for sentencing, I find that the 13 co-prisoners fall short or under the requirements or considerations where death sentences should be imposed.  But given the grave nature of the crimes that have been committed, they shall face the next severe punishment.

42.	Except for prisoners Nerius Kuang Juinor and Nathan Thomas, I sentence prisoners WILLIAM LARE, CAMILUS MARKUS, ALWINUS EMIL, ALPHONSE LARE, NATHANIEL KENMI, JOSHUA BRUNO, PASKALIS LARE, BRIAN BURE, BONIFACE RAPHAEL, BERRY BRUNO and JONAH BRUNO, to life imprisonment.  I find the punishment fitting for the crimes that they have committed.  

43.	As for prisoners NERIUS KUANG JUNIOR and NATHAN THOMAS, I will impose separate sentences.

44.	Nerius Kuang Junior and Nathan Thomas have given early confessional statements to police when they were arrested.  These statements were tendered without objections in Court.  They formed part of the circumstantial evidence that had assisted with the convictions of the prisoners.  I note that the 2 prisoners did deny the charges and they had also exercised their rights to remain silent, and as a result, a full trial had been conducted to find them also guilty.  However, given the nature of the offence, which was a planned or group attack from the people of the same tribe or clans who live together, one can imagine a lot of factors that may have come into play to make the 2 men plead “not guilty” and exercise their rights to remain silent with the others.  That aside, the other important factor is that given that the evidence was circumstantial, the evidence of the 2 prisoners had assisted this Court in its deliberations.  And I also note that the 2 prisoners have not opposed the tendering of their confessional statements in Court.

45.	As for Nerius Kuang Junior, his own confessional statement has put him at the crime scenes where he was convicted, that is, pursuant to s. 7 and s. 8 of the Criminal Code.  He was not identified by anyone else in Court, that he was present at the crime scenes.  And this is what he had to say, and I quote in part from part from Exhibit P17:

Okay, I didn’t know about this move.  I stayed at the block at Illi village.  When I came up to Merai village, this move to go down to Mak village was already set.  We all men from Merai village went into that group.  True that we went down to Mak village and stood on the road and saw those men went and burnt down Sulka people’s house.  Night time too so we wouldn’t know who really burnt it.  The men from Sulka living at Mak and Sumsum villages usually chased us and do anything to us so we organised up at Merai village, agreed upon and came down to Mak village and did that move.  Some of us stayed at Mak village and went back and some men came to Sumsum village and went back.

46.	He participated but did not take part in the actual killing.  I find the gravity of his involvement minimal based on his confessional statement.  I therefore impose a less severe sentence of 13 years imprisonment to Nerius Kuang Junior, that is, for each count of wilful murder.  The total imprisonment term is 26 years.  I will order that he serves these two terms concurrently.

47.	As for prisoner Nathan Thomas, he also gave a confessional statement.  But unlike Nerius Kuang Junior, apart from his confessional statement, he was also identified by State witness, Bosco Kuta.  He was said to be at the crime scene holding a bush-knife.  This was what he said in confession, and I quote in part from Exhibits P15 and P30: 

Yes.  We mobilized at Merai village and came down to Mak village.  We came near the village and came in group.  Large group went into the Mak village and destroyed houses and we some stood guarding on the road.  When the group of men went in and came out we walked to the village.  Big group of men went into the village so I wouldn’t know who killed those two men.  We walked to the village and I heard that there were killings.  I stayed at Gar village and when I went to Merai village the plan was already there for us to go to Mak village.  At that time, we came down, the Ward member Leonard Wandrem also came down with us and stayed at his block where his copra dryer is.  After that move we came back and stood at the ward member’s block.  Some group of men went to Sumsum village came and met us.  Many men went to Sumsum village, I wouldn’t know, who were they.”

48.	Prisoner Nathan Thomas actively participated in commission of the 2 crimes.  I will impose a sentence of 25 years for each count of wilful murder.  The 25 years range I note is within the sentence range for both wilful and murder sentences that have been applied by this Court in the past.  The total sentence I impose for this prisoner for the 2 counts of wilful murder is 50 years.  The prisoner will serve his prison terms concurrently.

TYPE OF PUNISHMENT

49.	The pre-sentence reports recommend probations for all the prisoners.  I decline to impose the recommendations and that is because of my findings.

PERIODS IN CUSTODY

50.	I will exercise my discretion in this case for prisoners Nerius Kuang Junior and Nathan Thomas.  Their pre-sentence periods in custody shall be deducted from their 2 sentences, respectively.

ORDERS OF THE COURT

51.	I impose the following punishments for the 13 co-prisoners:

No.	Prisoner	Sentence	
1.	William Lare	Life imprisonment	
2.	Camillus Marcus	Life imprisonment	
3.	Alwinus Emil	Life imprisonment	
4.	Nathan Thomas	25 years for each count to be served concurrently and less the pre-sentence period	
5.	Alphonse Lare	Life imprisonment	
6.	Nerius Kuang Junior	13 years for each count to be served concurrently and less the pre-sentence period	
7.	Nathaniel Kenmi	Life imprisonment	
8.	Joshua Bruno	Life imprisonment	
9.	Paskalis Lare	Life imprisonment	
10.	Brian Bure	Life imprisonment	
11.	Boniface Raphael 	Life imprisonment	
12.	Berry Bruno	Life imprisonment	
13.	Jonah Bruno	Life imprisonment	

Sentenced accordingly

________________________________________________________________
Office of the Public Prosecutor:	Lawyers for the State
Donald & Associates: Lawyers:	Lawyers for the 13 Co-prisoners