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State v Petrus (No 2) [2022] PGNC 101; N9522 (16 March 2022)

N9522

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1304 OF 2020

THE STATE

V

SAMUEL SIMON PETRUS
(NO 2)

Kimbe: Miviri J
2022: 14^th & 16^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE –Murder Section 300 (1) (b) CCA – Trial – Gun Discharged – Deceased Passenger in Vehicle robbed – Shot In Head – Prisoner Aided and Abetted Robbery – Circumstantial Evidence Bush knife Held – First Time Offender – Prevalent Offence – Value of Human Life – Constitutional Freedom Decay of – 20 Years IHL appropriate.

Facts
Prisoner was part of a group of men who were armed with homemade guns and knives who held up a PMV bus with its passengers on the road. In the course of that holdup one of the robbers discharged the homemade gun shooting the deceased in the head from which he died. Prisoner was armed with a bush knife threatened the driver who stopped and the shooting followed in the course of the robbery.

Held
Bush knife wielding assisted and aided murder.
Guilty of Murder.

Cases Cited:

Aihi v The State (No 3) [1982] PNGLR 92
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Simbago v The State [2006] PGSC 23 SC849
Gimble v The State [1988-89] PNGLR 271
Thress Kumbamong v The State (2008) SC1017
Kovi v The State [2005] PGSC 34; SC789
Ume v The State [2006] PGSC 9; SC836
The State v Hariki [2003] PNGLR 1
Kama v The State [2004] PGSC 32; SC740
Golu v The State [1979] PNGLR 653
State v Hahuahoru (No 2) [2002] PGNC 136; N2186
Warome v State [ 2020] PGSC 73; SC1991
Nimagi v State [2004] PGSC 31; SC741
State v Hagei [2005] PGNC 60; N2913

Counsel:

L. Maru, for the State
D. Kari, for the Defendant

SENTENCE

16^th March, 2022

1. MIVIRI J: This is the sentence after the trial of Samuel Simon Petrus of Wamayang, Kubalia, East Sepik Province who was convicted of murder pursuant to section 300 (1) (b) of the Criminal Code Act by operation of section 7 of the Criminal Code Act.
   
2. The relevant facts on arraignment were that a PMV bus named Sweat Blessing Piru was travelling from Malilimi Division 1 to Kimbe Town on 27^th June 2020. It was about 6.00am to 7.00am in the morning and there were about sixteen passengers including children onboard. The passengers were mostly workers of the New Britain Palm Oil Limited (NBPOL) and few block holders from Malilimi Division 1. Along the way at a section of the road there was a bend, the driver slowed down and also there was a log placed across the road. He stopped and as he did, the Prisoner and nine (9) accomplices masked and armed with bush knives, Stapler Guns and homemade guns ran up to the bus. They held up the driver with the passengers by putting the guns to their heads and got cash and assorted items including bilums and bags belonging to them.
3. After they got the cash and assorted items from the Driver and the passengers, one of the accomplices of the prisoner armed with a homemade gun walked to the front of the bus, pointed the gun at the offsider of the bus, and fired at him at close range, but he ducked avoiding the bullet. It missed him and got Morris Yagu who was sitting between the offsider and the driver of the bus. The bullet penetrated him through the left side of his face just near the left ear. It blew out both his eye socket and instantly killed him.
4. The Prisoner and Accomplices fled into the bushes nearby. The matter was reported to the Police at Buvussi who pursued immediately resulting in the capture of the Prisoner soon after. But his accomplices escaped and are at large. They had intended to kill the deceased and did cause his death. The State invoked section 7 of the Criminal Code in that the Prisoner and his accomplices aided and abetted each other in the commission of the offence.
5. What then is the appropriate sentence given that the Prisoner was one of the men who was armed with a bush knife. He was not the one who discharged the fatal shot that killed the deceased.
6. The maximum penalty for the offence of murder subject to section 19 is imprisonment for life section 300 (1) of the Criminal Code Act. And the maximum penalty is reserved for the worst case of murder. Therefore, the facts and circumstances will dictate whether the case is the worst or not so as to draw the sentence due. Each will draw what is the proportionate sentence given its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating, mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92.
7. Prisoner was accorded opportunity to speak in allocutus as to what he considered relevant that the Court should consider in the determination of the sentence upon him. He stated, “Thank you, you came to hear my case. I don’t have much to say. I was not part of this. I am innocent. Sentence I am too young to be in jail. It is not safe in the prison. I am a student thinking of getting back to School. I am first born in family. I help Parents in the garden. I ask Probation in my sentence.”
8. He still disputed his involvement in the crime, but he was pursued and was caught with what was stolen. And when apprehended he fought the police. The application for a Presentence report was granted and before sentence this was tendered into court together with a means assessment report. The relevant excerpts of it were that the prisoner is 27 years old. He is resident at Buvussi Section 1 Block number 1421. The immediate area is within the Mosa Local level Government. Originally, he is from Kubalia, Wosera, East Sepik Province. That is where his father is from. The mother is from Peya in the Finchafen area of the Morobe Province. He comes from a family of nine siblings out of which he is the third born.
9. He was a first-time offender and had no criminal history. He was educated to grade 7 in 2018 but was unable to complete his grade 8 because he did not have the financial means to pay for the fees. He is keen to go back to school and to complete his education. Which was a bold assertion without independent material confirming that he indeed has a place at a school, and in what grade. It was therefore a general assertion without proof indeed that upon grant he will satisfy the ground to continue his education.
10. Further he said that he will change his life and live for God. He states that he is currently suffering from TB acquired in custody whilst awaiting this case. This is a serious fact that is not independently settled with a medical report evidencing. He does not have formal employment and depends on his mother who sustains through a mini market selling garden food. He states that he was previously employed by Navarai Plantation (NBOL) in 2019 to 2020 as fruit cutter/harvester only for a short period and left. Which is a very relevant consideration to be upheld that the Prisoner can meaningfully participate in a part custodial sentence with conditions for work program.
11. He is a follower of the Assembly of God church at Buvussi and participates in its activities. This aspect is confirmed by one Vincent August Ward Development Committee of Buvussi-Galai. He confirms that the offender does not have negative reports in the Community and has participated in spiritual activities within the Assembly of God church. He may have fallen into the crime lured by peer pressure. Which is also the confirmation by Pastor Kenneth Saros of the Christian life Centre Buvussi. Who has pledged to give time to the supervision of the defendant should time outside of court be ordered.
12. Naturally the parents want the son to go back to his former job and to continue to work with Navarai Plantation and raise money for his school fee. That he was out attending the passing of his grandmother when arrested for the offence. They are concerned that the others who are responsible for the commission of the Crime are at large outside. Any penalty must consider that he was one of them, he should not pay entirely for the wrong. That he be sentenced for his role. There is no possibility of mediation and compensation in the matter as yet. It has not been explored since the date of the offence 27^th June 2020.
13. Which brings the relevant role of the men with bush knives, as the prisoner was apprehended with a bush knife and the verdict was, he was one of the men who was armed with a bush knife. That in the words of the driver of the PMV, five came from the front and three came from the driver’s side and two went to the boss crew side. The three that came to my side, one of them was armed with a gun and two had bush knives. They opened the door of the bus and the man with the gun pointed it straight at my forehead and the two with the bush knives put it on my legs and demanded, money ikam.
14. And when they did that to me, I cried and sat down on the floor of the bus where the accelerator, brake and clutch are and said to them, “Ol Pikinini yupela noken katim mi o bagarapim mi, moni stap long Bilum ya K 700.00 stap insait yupela kisim.” And they took it with the money and class 6 driving licence, PMV permit licence, two save card (BSP) and ID card of the block. All were inside the bilum that they took. At the same time, the two that went to the boss crew side I heard gunshot and saw smoke from the cartridge fired inside the bus. When the gun fired the three men who were with me moved away and I turned and looked to the boss crew side. I saw the door was open and the man who sat in the middle a passenger fell outside onto the road.
15. The Prisoner is one of the persons with the bush knives in the crime and the role he played is not passive, but active and leading in the offence. It is a very serious armed robbery that went wrong because of greed. Properties demanded were stolen without resistance. Bilums demanded were handed over with their contents without any resistance by the owners. Rather than get all and effect escape one of the robbers committed the crime. Prisoner was amongst the group armed with a bush knife. Except for the deceased all others did not receive any injury from the offence. There is no evidence of any other serious injury other than the death. Considering all the presentence report recommends that the offender is suitable candidate for probation Supervision for an extensive period with additional conditions to further compensate the victim and relatives for lasting peace between all.
16. This assertion must be taken at the initiative of the prisoner and his immediate relatives if it is a genuine action to solve the matter at that level. And considering the facts by the Presentence Report and the Means Assessment Report, prisoner does not demonstrate that he has the means to be able to pay any form of compensation let alone the minimum under the Criminal Compensation Act of K5000.00. He is 27 years old unemployed has no history of employment. He self supports himself in the sale of vegetables and piggery which may draw at the minimum gross income of K 3,030.00. This assertion is bold and not real without any backing material as to the number of pigs he owns. The report says he has a house but does not say what type of house it is, how big it is to be converted into cash should compensation be ordered. He is a man without any real means to be able to carry out an order for compensation if that is ordered. He asserts his innocence and maintains that he will not pay. Which is a matter not relevant for the purposes of determining sentence in his favour.
17. These are the mitigating factors in his favour. The aggravating features depict that this was a very serious case of murder committed during the course of that robbery. And that is clear from three photographs depicting the entry of the bullet in a large hole at the side of the left ear showing the sockets of the eye but did not depict any exit of the bullets. He was innocent, did not cause any harm to anyone yet paid with his life for being in that bus held up by the Prisoner and his accomplices. He was not fighting the Prisoner and his accomplices in the robbery.
18. It was a very prevalent and serious offence. It was Murder committed in the course of a robbery as seen in this court including the Supreme Court, instances such as Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). It is the way and manner in which the crime is perpetrated not the amount of money or properties stolen that will determine the penalty. Guns are lethal and dangerous weapons and have in many instances killed in the course of robberies as depicted here. And homemade guns without any safety mechanisms within are lethal and deadly as seen in this robbery. Because their production are with anticipation that there will be resistance it is therefore well planned to time to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.
19. He may have been armed with a bush knife but the number in the pack mounted to the success of the robbery. He did not pull the trigger but facts show that two of the persons within with bush knives played a leading role in holding down the driver of the PMV relevant excerpts of that evidence I set out above. His role as one of the man with the bush knives was important. And his sentence will be drawn by that fact. He did not pull the trigger but he was one of the number in the success of the robbery and getaway.
20. I take due account of 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 watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.”

That is applicable here, and I apply in the determination of an appropriate sentence for the prisoner. And this is a robbery that occurred on the road by this case it would draw a starting point of five years.

21. I also take into account that each case is determined on its own facts and circumstances and draws its own sentence by that fact. Further that tariff and range are amongst matters for and against that are considered in determining an appropriate penalty in a given case: Thress Kumbamong v The State (2008) SC1017. Therefore, it is not in stone that a sentence of between 20 to 30 years be imposed upon the prisoner because it is a category two to three by its facts: Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). Both counsel have submitted that this case falls between the second and third category. It is my view respectfully that it is a guide considered together with all other facts and circumstances of a particular case. Considering too that like offences must be treated alike. But the facts here are not likened to very serious cases of homicide which have drawn the ultimate penalties: Ume v The State [2006] PGSC 9; SC836 (19 May 2006) and The State v Hariki [2003] PNGLR 1 which are homicide purely by its facts with the prisoners with blood on their hands. This case would be nowhere near given its facts particularly in the light of the role that the prisoner has played out in the offence.
22. It would in my view be likened to Kama v The State [2004] PGSC 32; SC740 (1 April 2004) where in the course of an armed robbery on the highway the deceased was shot dead as is the case here. Prisoner there was sentenced to 25 years and appealed to the Supreme Court against the excessiveness of the sentence. It was dismissed with the Supreme Court voicing that the appellant was dealt with leniently in the sentence passed. The appropriate sentence given was life imprisonment because the prisoner fired the shot to the head of the deceased in the robbery killing him instantly. Here the facts would not par out against the role that the prisoner played. It would not be 25 years imprisonment within Kovi’s case (supra). The penalty must fit the crime and not exceed Golu v The State [1979] PNGLR 653.
23. The facts peculiar to the prisoner are not what this Court observed in State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21 February 2002) which draw life sentences for the prisoner who shot twice at the driver and passengers on a highway PMV in the course of a robbery on a highway. Six People including the deceased paid for the two shots that were fired by the prisoner who had a similar prior conviction. It was the result of a failed robbery. Comparatively the facts peculiar to the prisoner here do not equate that bar. But a life was lost and the sanctity of life must be protected whether it is in a domestic situation: Warome v State [2020] PGSC 73; SC1991 (27 August 2020) which details also that the peculiar facts of each case must be properly weighed out drawing appropriate sentence.
24. This is not the situation observed in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) where in the course of the robbery, the daughter was pulled by one of the robbers. The father stood up and tugged with the robber who was pulling his daughter away. One of the robbers shot the father in the chest severing the rib bones, lungs and vitals, he died there. Fifty (50) years was imposed from which the prisoner appealed arguing it was excessive he was a watchman and the shooting was accidental and not intended. The Court dismissed the appeal reinstating that the death penalty should have been imposed for wilful murder. Again, applied to the facts of that case this case would not fit that sphere. But it is anticipated in a robbery that regardless of the weapon held, the role played as here with a bush knife death is lurking and could eventuate as set out in the various cases here. The present is no different. And any sentence be it the watchman, the gunman or the bush knife wielding must be the same. Because together the robbery succeeds, but the difference is in the pulling of the trigger and the intent of the shooter. Here that is what will differentiate the prisoner in his sentence.
25. He is a first-time offender with no criminal history to his credit. He will come out of prison learned that it does not pay to steal nor does it pay to commit a crime. And life is God given and preciously sanctified and placed in the highest regard by section 35 of the Constitution of our Nation. It is a right not an obligation and should be regarded at the optimum. Courts must protect that fact in the sentences passed. The prisoner is presently 27 years old single with education level of grade 7 in 2018. There are no extenuating circumstances here as depicted in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) except that the Prisoner was not the trigger man nor did he intend that the deceased be killed. But the fact is that his wielding of the bush knife in the crime ensured its success and the homicide was a probable consequence of that crime seen as set out above.
26. Accordingly, the sentence taking account of all is 20 years imprisonment in hard labour. The time he has served on remand of 1 year 8 months 2 weeks will be deducted from his head sentence. He will serve the balance in jail. I make no orders for any suspension based on the presentence and the means assessment report because there is no basis by those reports to make those orders.
27. Sentence is 20 years IHL in jail. Time on remand of 1 year 8 months 2 weeks is deducted forthwith. And the remaining balance of 18 years 3 months 2 weeks will be served in jail.

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant