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State v Asabona [2020] PGNC 293; N8494 (20 August 2020)

N8494

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1242 OF 2017

THE STATE

V

NIGEL ASABONA

CR NO. 1243 OF 2017

THE STATE

V

FRANKY FRED

CR NO. 1236 OF 2017

THE STATE

V

MARK MABESI BOLO
(NO.2)

Alotau: Toliken, J
2020: 20^th May, 20^th August

CRIMINAL LAW – Sentence after trial – Murder – Multiple offenders –Not a worse case - Individual degrees of culpability and participation considered – Mitigating and aggravating factors considered - Crime of opportunity – Appropriate sentences – Main perpetrator 22 years – Co-prisoners 19 years – Criminal Code Ch. 262, s 300(1)(b).

Cases Cited:
Papua New Guinea Cases

Andrew Uramani & Ors v The State [1996] PNGLR 287
Gimble v The State [1988-89] PNGLR 271
Avia Aihi v The State (No.3) [1983] PNGLR 92
Mandatititip& Anor v The State [1978] PNGLR 128
GoliGolu v The State [1979] PNGLR 653
Sanawi v State(2010) SC1076.
Manu Kovi v The State (2005) SC 789
Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC 205
The State v Marai (2017) N6693
The State v Hurotove (2017) N6754
The State v Joseph Nimagi and 2 Others [2002] N2312
The State v Boat Yokun and eight Others [2002] N2337
The State v Nigel Asabona & Ors: CR 1242, 1243, 1244 and 1266 OF 2017 (No.1) (Unreported and unnumbered judgment of 18 November 2019)
The State v Robert Sakeu&Ors; Cr 1552, 1553 & 1554 of 2015 (unnumbered judgment dated 16^th August 2018) (No.2))
The State v Maika Tobby; CR No. 1252 of 2015 (Unreported and unnumbered judgment dated 16 August 2018).

Overseas Cases

Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Radich (1954) NZLR

Counsel:

A Kupmain, for the State
N Wallis, for the accused

SENTENCE

20^th August, 2020

1. TOLIKEN, J: The prisoners Nigel Asabona, Franky Fred and Mark Mabesi Bolo were initially indicted for the wilful murder of one Rastus Belami on 14^th March 2017. At trial I, however, convicted them for murder committed in course of prosecuting an unlawful purpose instead under Section 300(1)(b) of the Criminal Code. (the Code).
   

FACTS

2. The brief pertinent facts for the purpose of sentencing the prisoners are these. On the evening of 14 March 2017, the deceased met three girls namely Theresa Sam, Marsha Ian and Gwen Paulus at the Sanderson Bay Informal Market. There Marsha Ian noticed that the deceased had some money on him. And so when they crossed over to the Tourism Office on the other side of the road, Marsha Ian told Theresa Sam to keep the deceased company while she and Gwen Paulus went back to the Informal Market to find some Compound boys to hold up the deceased and rob him of his money.
   
3. At the Informal Market Marsha Ian tried enlisting a Duau boy to carry out her plan but the boy refused to get involved. In the meantime, Theresa Sam forewarned the deceased of Marshal Ian’s plan, but he did not take heed because he was obviously under the influence of alcohol.
   
4. After a while Theresa Sam and the deceased re-joined Marsha Ian and Gwen Paulus and they proceeded to walk towards Sanderson Bay to go to the Government Hostel on Paradise Street where the deceased had been staying.
   
5. At that time the prisoners Nigel Asabona, Mark Mabesi Bolo (also known as Randy), Franky Fred and a friend of theirs named Moka Richard were at Sanderson Bay when Theresa Sam, Marsha Ian, Gwen Paulus and the deceased walked past and crossed over to the Jade Island Trading (JIT) site on the other side of the road.
   
6. Nigel Asabona, Franky Fred and Mark Mabesi Bolo followed the three girls and the deceased across the road to the JIT site to Paradise Street. There, Nigel Asabona grabbed the deceased by the shirt and tried to remove his bag, but the deceased resisted. Mark Mabesi Bolo joined in, demanding the deceased to let go of his bag saying “rausim bag, rausim bag!” Franky initially also joined in trying to dispossess the deceased of his bag.
   
7. During the scuffle, Nigel Asabona produced a knife and repeatedly stabbed the deceased. He inflicted a total of five penetrating stab wounds to the deceased body - one to the left chest penetrating into the pericardial cavity puncturing the upper left ventricle, and four to the left lower back.
   
8. The deceased was rushed to the Alotau General Hospital but succumbed to his injuries.
   
9. The State invoked Section 7 of the Criminal Code. Hence, I found that the prisoners Franky Fred and Mark Mabesi Bolo were not mere innocent bystanders. They did not desist or flee the crime scene before their co-prisoner Nigel Asabona fatally stabbed the deceased. On the contrary they collectively attacked the deceased to rob him of his money in the process of which Nigel stabbed him repeatedly with a knife. In the case of Franky Fred, I found that he left the scene only after the deceased had been fatally wounded. In those circumstances the prisoners were held equally responsible for causing the death of the deceased as principal offenders within the meaning of Section 7 of the Code.
   
10. While there was no evidence at trial to show that the prisoners knew about the plan hatched by Marsha Ian let alone that the deceased had money, for that matter, I held that the fact the prisoners attacked and robbed the deceased strongly suggested to me that they knew he had money, otherwise there would not have been any reason at all for them to attack him. (See The State v Nigel Asabona &Ors: CR 1242, 1243, 1244 and 1266 OF 2017 (NO.1) (Unreported and unnumbered judgment of 18 November 2019 for judgment on verdict)
    

THE OFFENCE

11. The crime of murder carries a maximum penalty of life imprisonment. It does not necessarily mean, however, that I will impose the maximum penalty. Whether I do depends on several considerations such as whether this a worst offence because the maximum penalty is usually reserved for worst in stances of an offence, the circumstances under which the offence was committed, the seriousness of the offence, the offender’s degree of culpability, degree of participation where multiple offenders are involved and the offender’s personal circumstances (Avia Aihi v The State (No.3) [1983] PNGLR 92; Goli Golu v The State [1979] PNGLR 653).
    

THE ISSUES

12. The issues for my determination are (1) whether this is a worst offence and (2) what an appropriate sentence for each prisoner ought to be.
    

SENTENCING GUIDELINES

13. The Supreme Court has over the years set guideline tariffs for wilful murder, murder and manslaughter. The current leading authority is Manu Kovi v The State (2005) SC 789. For murder the guidelines are as follows:
    

14. In cases involving multiple offenders, Gimble v The State [1988-89] PNGLR 271, stands for the principle that co-offenders ought to receive the same sentences so that equal justice is served, hence, the principle of parity. However, the circumstances of an offence, including the respective offender’s degree of participation and culpability may well justify disparity. The statement by Dawson and Gaudron, JJ in Mario Postiglione v TheQueen [1997] HCA 26; (1997) 189 CLR 295, at 301 – 302 stands for this principle. Their Honours said:

"The parity principle ... is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CL R 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

15. The above statement has been adopted and approved in this jurisdiction in cases such as The State v Boat Yokun and eight Others [2002] N2337, The State v Joseph Nimagi and 2 Others[2002] N2312,Andrew Uramani &Ors v The State [1996] PNGLR 287 and Sanawi v State (2010) SC1076.

ANTECEDENTS

16. The prisoners’ respective personal backgrounds are as follows:
    

Nigel Asabona

Nigel Asabona is 21 years old (18 when he committed the offence) and comes from Ginada village, Cape Vogel, Alotau District, Milne Bay Province. He is single and is the first of two siblings. He is fatherless and was raised by his grandfather. His mother is alive, but mentally challenged and lives at Duau Compound here in Alotau. He is a member of Revival Centres of PNG Church and was educated up to Grade 6 only. He is a first-time offender and had never been formally employed. He has been in pre-trial/sentence custody since his arrest on 27 March 2017.

Franky Fred

Franky Fred is 23 years old (21 when he committed the offence) and is of mixed Suau and Goodenough parentage. He is single and is the second of three siblings. His parents are both still alive and reside at Sanderson Bay, Alotau. He is a member of the United Church, single and left school at Grade 3. He also had been in custody since his arrest on 27 March 2017. He has no record of prior convictions.

Mark Mabesi Bolo

Mark Mabesi Bolo is about 21 years old. He was 18 when he committed the offence. He is of mixed Popondetta and Milne Bay (Topura, Maramatana RLLG) parentage. His parents are still alive and reside at Hideaway Settlement, Sanderson Bay, Alotau. He is the second of 5 siblings. He is a member of the Seventh Day Adventist Church and only has a 5^th grade education. He has no record of any prior convictions. He has been in custody since arrest on 04 September 2017.

ALLOCUTUS

17. All three prisoners maintained their innocence during allocutus. Nigel Asabona thanked the Court for its time but said that he is innocent of this crime. He said he was at the scene of the crime but did not look for trouble and that he in fact assisted the deceased by putting him in the vehicle that took him to the hospital. He said he has no idea about the armed robbery and that had it not been for the girls’ involvement in the whole incident he would not be before the Court.
    
18. Franky Fred said he also assisted the deceased after which he went home. He also denied doing anything wrong.
    
19. Mark Mabesi Bolo acknowledged that he had been convicted after trial but swore to God and the Court that he is innocent. As a first-time offender, he asked that he be placed on good behaviour or probation.
    

SUBMISSIONS

20. Mr. Wallis submitted in behalf of the prisoners that this is not a worst case of murder. Counsel said that there was no preplanning involved and it was more a crime of opportunity than anything else. The prisoners did not know that the deceased was carrying money and had it not been for the three girls’ involvement, the deceased would have not met his death at all.
    
21. Counsel submitted that the prisoners have some good mitigating factors such as their educational background or lack of it, lack of pre-planning and the fact that they all were of prior good character. Counsel was of the view that the case would fall under category 2 of the Manu Kovi tariffs as it exhibited no strong intention to do grievous bodily harm. It should therefore attract sentences between 16 – 20 years.
22. Of the cases which he cited Mr. Wallis was of the view that the circumstances of this case are similar to those in The State v Marai (2017) N6693 as they both involved killings in the course of a robbery. The sentence there was 20 years.
    
23. The prisoners’ Presentence Reports (PSR) were not favourable.
    
24. For the State, Mr. Kupmain agreed that The State v Marai (supra) is similar to the current case in that the victims were killed in the course of a robbery. However, Marai was a plea matter while the current case is not. Mr. Kupmain submitted that the prisoners here continued to protest their innocence despite having been convicted after trial and that they have expressed no remorse at all. Counsel was of the view that the circumstances of this case could easily place it within both Categories 3 and 4 because the killing was done in the course of committing another crime and very serious injuries were inflicted on the deceased with a dangerous weapon. An appropriate sentence ought then to be between 30 years and life imprisonment.
    

OBJECTIVE SERIOUSNESS

25. At this juncture I must say that when viewed objectively, this case cannot be considered a worst case deserving of the maximum penalty of life imprisonment. But while it may not necessarily be a worst case of murder, it is nonetheless very serious and the prisoners’ culpability is high. I would think that the circumstances of this case place it at the top of Category 2 and middle of Category 3 of the Manu Kovi tariffs, thus attracting sentences between 19 – 25 years.
    

MITIGATING FACTORS

26. I accept the following mitigating factors –
    
    • The prisoners are all very poorly educated. None of them has completed lower primary level education and hence they might as well be regarded as illiterate.
    • They have no prior convictions
    • They were of prior good character
    • They were all youthful offenders
    • There was no preplanning involved and theirs is more a crime of opportunity more than anything else.
      

AGGRAVATING FACTORS

27. Against them are the following factors:
    
    • The offence of murder is prevalent not only here in Milne Bay but right across the country
    • The use of a dangerous weapon to attack the deceased
    • The prisoners killed the deceased in the course of committing another offence – robbery
    • This was a group attack
    • The deceased was unarmed
    • The attack and killing happened in the night rendering it impossible for the deceased to adequately fend off the prisoners
    • Infliction of multiple injuries on the deceased
    • This was a vicious attack.
      

CONSIDERATIONS FOR APPROPRIATE SENTENCE

28. What then should be an appropriate? The prisoners will of course be sentenced to the level of culpability and participation in the killing of the deceased.
    
29. The main perpetrator here is obviously Nigel Asabona. While I do accept that the prisoners obviously intended initially to rob the deceased of his money only when they demanded him to surrender his bag, Nigel Asabona escalated the situation when he produced the knife and repeatedly stabbed the deceased. That the deceased resisted and refused to surrender his bag (and money) was a natural reaction in the given situation, but that did not give Nigel Asabona the right to attack him with the knife. He inflicted multiple injuries to the deceased - and thus snuffed out his life pre-maturely.
    
30. The death of the deceased was totally unnecessary. A family has once again been left in distraught because some misguided youths recklessly and unlawfully took away the life of a loved one.
    
31. There is too much killing in this province and around the country for that matter. Despite the stiff penalties, including life sentences and even death for the very worst of cases being imposed by the courts for homicide offences, these obviously have had no deterrence on people out there in the community. This merely goes to confirm what many commentators have said - that there is no empirical evidence to show that stiff sentences have not had the desired effect of deterring offenders or like-minded persons.
    
32. That, however, does not mean that the court should not mete out appropriate sentences. If offenders and like-minded persons cannot be deterred, then they must be punished for the sake of retribution alone. In Acting Public Prosecutor v Clement Maki and Tom Kasen (1981) SC 205, Greville Smith J, quoted with approval a statement by the Court of Appeal in the New Zealand case of R v Radich (1954) NZLR 86 where, among other things, it was argued in behalf of the appellantthat the long retributive sentence imposed on him to meet public expectation was not justified, having regard to his character and was not necessary to deter let alone reform him. The court said -

“We should say at once that this last argument omits one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilized countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crime should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment.

If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.” (underlining mine)”

33. The above statement is as appropriate today as when it was made. The prisoners here are all youthful offenders and their youthfulness is acknowledged and taken into account as a normal mitigating factor and not a special one. The Supreme Court some 42 years ago in Mandatititip & Anor v The State [1978] PNGLR 128 per Prentice CJ and Prichard J) held that a plea of youth is no longer a satisfactory answer to crime. (See also Acting Public Prosecutor v Clement Maki and Tom Kasen (supra). And I must agree with that especially when a very high proportion of crime (indictable and simple) are being committed by youthful offenders.
    
34. The prisoners here must be given sentences which are commensurate with the degree of participation in the commission of the crime. The Court must, however, also take into account their “previous character and conduct, and probable future lifeand conduct.”
    
35. They are young men, who are very poorly educated, if at all, and because of their upbringing in the settlement here in Alotau, they would not have had much guidance and nurturing from their parents and guardians, which is an unfortunate and sad fact of urban settlement life. Their sentences must therefore ultimately seek to deter and rehabilitate them. We should not condemn them too readily as lost causes because everyone, but more so youthful offenders, have the potential to change their life course. And, many of them do change. What should each of the prisoners get?
    

Sentencing Trend

36. Mr. Wallis submitted in behalf of the prisoners (as we have seen) that the circumstances of the case are similar to those in The State v Marai (supra). I do accept that there are some similarities there. In that case the offender, a juvenile of 16 years of age, and his two friends were following a bush track armed with a home-made gun and bush knives when they met the victim and his friends and attacked them. The victim had some cash on him. The offender shot the victim with the gun and his friends cut him with their bush knives when he fell to the ground. The victim sustained gunshot wounds to the lumbar region of his body and knife wounds to the head, arms and legs.
    
37. Among other aggravating factors, His Honour Auka AJ (as he then was) found that this was a cold-blooded and unprovokedmurder. And despite being a juvenile with no prior convictions and other mitigating factors, His Honour held that he acted like anadult and must therefore be punished like one. The prisoner was given a 20 years sentence.
    
38. In The State v Hurotove (2017) N6754 (per Salika DCJ as he then was) the prisoners, who are brothers, were indicted for the wilful murder of the deceased, but were convicted for murder instead. The deceased had been having an adulterous affair with the wife of one of the offenders. A mediation was arranged by the Village Court to take place at the back of the Boroko Police Station, NCD but the deceased and his lover did not appear at the mediation and so the prisoners and a truck load of their relatives went looking for them. They found them at the Boroko Shopping Area and attacked the deceased stabbing him several times on his body resulting in his death. While one of the offenders admitted to stabbing the deceased, the other denied his involvement. His Honour, however, found that he was the leader of the group and did not believe him. Like the prisoner in the current case, this offender maintained his innocence despite his conviction. They were sentenced to 22 years imprisonment.
    
39. In The State v Robert Sakeu&Ors; Cr 1552, 1553 & 1554 of 2015 (unnumbered judgment dated 16^th August 2018) (No.2)) the offenders (all juveniles) were initially charged with wilful murder but convicted for manslaughter instead. The deceased and his two friends, who were visiting a relative at Waikewala village on Goodnough Island from their village on Milne Bay mainland. It so happened that a fight broke out between the deceased’s two friends with a local man resulting in the latter getting injured. Fearing for their safety the deceased and his two friends set off on foot for the Bolubolu Government Station the next day.
    
40. The offenders and the main perpetrator (Maika Tobby, later charged separately) pursued them. They caught up with the deceased and his friends they were resting along the way and attacked them with weapons. In the attack the deceased and his friends were separated. Maika Tobby pursued the deceased and brutally killed him. Robert Sakeu and his co-offenders were convicted under Section 7 of the Code and sentenced to 10 years imprisonment less time in custody. The main perpetrator MaikaTobby pleaded guilty to murder and was sentenced 25 years imprisonment. (The State v Maika Tobby; CR No. 1252 of 2015 (Unreported and unnumbered judgment dated 16 August 2018).
    
41. These are only but four of the hundreds, if not thousands of cases of homicide cases that have and continue to plague our societies.
    

SENTENCES/ORDERS

42. The prisoners must of course be sentenced according the circumstances of their case and their individual degrees of participation. In that regard I do take into account the fact that they are all youthful offenders and that this is their first offence, as well as the other mitigating factors cited above. I also accept that this was more or less a crime of opportunity which, however, resulted in the death of another young man. There are, however, significant aggravating factors which I have enumerated above which should justify higher sentences than those imposed in The State v Robert Sakeu & Ors. (Supra) Sentences should in my opinion be similar to those imposed in The State v Marai (supra) and The State v Hurotove (supra) and the State v Maika Tobby (Supra.)
43. The main perpetrator here is of course Nigel Asabonaand for his part, I would think that he should get a sentence of 22 years. I therefore sentence him to 22 years imprisonment less time in pre-trial/sentence custody.
    
44. For their lesser part in the killing of the deceased, the prisoners Franky Fred and Mark Mabesi Bolo are sentenced to 19 years imprisonment less time in pre-trial/ sentence custody.
    
45. These are long sentences for these young men, but they have to take responsibility for their criminal behaviour. Crime pays a bitter wage and juvenile and youthful offenders who committed serious offences must be prepared to lose their liberty and spend a good part of their young lives in prison.
    
46. The prisoners’ PSRs are not favourable hence suspension is inappropriate. The prisoners will therefore serve the balance of their sentences in full at the Giligili Corrective Institution. They have the right to appeal to the Supreme Court within 40 days from today.
    

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Acting Public Solicitor: Lawyer for the Prisoner