N9918

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1209 OF 2019

THE STATE

V

FREDDY HOFFA

Wewak: Miviri J
2022: 14th 17th 20th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – Death Gunshot Heart & Lungs –Internal Head & Puncture of Lung – intent to kill – Pinnacle of Argument – Drunkenness – Law into Own Hands – Sanctity of Life – Prevalent offence – Persistent Determined Attack – Strong Deterrent Punitive Sentence – 20 years IHL.
Facts
Accused argued and fought with the deceased. They cut each other. Then went to the hospital and got treatment for the injuries. Returned and were at home reignited the argument when deceased was shot by the Accused. He intended to kill him and did so by shooting him with the gun.

Held
Law into own hands.
Pinnacle of Dispute.
Strong Deterrent & Punitive Sentence
20 years IHL.

Cases Cited: 
Avia Aihi v The State (No.3) [1982] PNGLR 92 
Tapea Kwapena v The State [1978] PNGLR 316
Kovi v The State [2005] PGSC34; SC789
Bonu and Bonu v The State [1997] PGSC 11; SC528 
State v Max Malala & William Kiu & Alois Bailey [2018] PGNC 357; N7445
Nimagi v The State [2004] PGSC 31; SC741
Simbe v The State [1994] PNGLR 38 
Ume v The State [2006] PGSC 9; SC836 
State v Hagei [2005] PGNC 60; N2913 
Tardrew v Public Prosecutor [1986] PNGLR 91
Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948

Counsel:

F. K. Popeu, for the State
A. Kana, for Defence
		
SENTENCE
13th September, 2022
1.	MIVIRI J: This is the sentence of Freddy Hoffa of Japarakwa No.2 Yangoru Sausia, East Sepik Province who was convicted of wilful murder that he on the 19th April 2019 at Makun/ Malasi here in Wewak wilfully murdered one Jafford Hoffa.

2.	On that day at the Japarakwa camp Makun/ Malasi he was consuming Home brewed liquor together with the deceased Jafford Hoffa and other young men. In the course of the drinking, they started arguing and the deceased got up and got bush knife and fought the accused who also armed himself with bush knives and they started to fight each other with it. Both received injuries to their bodies and went to the hospital. Then returned and continued to drink but separately. And around 7.00pm to 8.00pm the deceased and his friends walked past where the Prisoner and his friends were drinking. He called out to the Prisoner to get his money ready. Whereby the Prisoner who was in possession of a homemade gun called out to block the deceased, and he ran at the deceased and discharged a shot from his gun at him. There was a black out and the deceased fell down and died because he was shot. No one saw him until the next morning, because of the blackout. Medical examination report of the deceased showed that he had died from Cardiopulmonary Arrest due to the gunshot wound to the heart and lungs. Prisoner intended to kill the deceased and did kill him.

3.	Hence, he was convicted of wilful murder under section 299 (1) of the Criminal Code Act which reads:

(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.

4.	A person who commits wilful murder shall be liable to be sentenced to life imprisonment without parole."

5.	The maximum sentence that flows as a direct consequence of the conviction that he has sustained is life imprisonment Avia Aihi v The State (No.3) [1982] PNGLR 92. But that is always reserved for the worst offence of wilful murder, which is not the case here by its facts and circumstances established. But the fact remains that Life is precious and lived only once. And its deliberate taking draws immediate incarceration upon the prisoner. Because there is really no justification for the way that the prisoner has acted in taking up a homemade gun against the deceased. Who is unarmed and is shot because of the argument proceeding. It is a culmination of the earlier fight but is not warranted for the Prisoner to resort to a homemade gun and to use it as he does. Shooting the deceased in a vulnerable part of the body where the chances of survival are very low to nil is a very serious fact. Here too both are immediate relatives and the action is really disproportionate to the words uttered by the deceased who is asking prisoner to get his money ready presumably for the injuries inflicted upon him in the earlier fight. It is not a case as in Tapea Kwapena v The State [1978] PNGLR 316, where the prisoner is acting in self-defence. These seriously aggravate the offence and sum that disputes in life will arise but it is not warranted as a result to take the life of another. The violence that culminates as a result over and above will draw time in jail viewed in the light of the often-quoted case of Kovi v The State [2005] PGSC34; SC 789(31 May 2005) the present case falls into category 3 spanning a range from 20 to 30 years imprisonment. Both counsel concede.

6.	There was preplanning involved by the prisoner because he was in possession of a homemade gun. Which was not there by accident. It was taken out in anticipation that the earlier fight with the deceased would continue. And if it did, he was prepared to counter it with the homemade gun taken out readily available for that purpose that was executed. It is reasonable given the facts and circumstances posed here to infer that fact, Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997). There is no other reasonable hypothesis other than that fact against the conduct of the Prisoner. Which he readily used against the deceased his nephew and he being the uncle. 

7.	It is a sad fact to consider that the deceased was raised by the Prisoner’s brother who is a teacher at Secondary School. So, the family has been hurt in both ways, in the case of the prisoner as well as death of the deceased nephew. The Papua New Guinea family is extended and must be protected from violence that will envelope and shatter its foundations. Violent crimes have no place amongst families, communities, and the country. Because it will be visited with sentences that must deter punish to protect life. It is important that disputes within families are resolved through the process of law or lawful means. The family is the basic unit of society. If there is no order in the family, there is no order in the immediate community, Province, and the State. This sentence will entail that it is not a light matter where disputes are not controlled culminating into violence within the family and death is the result.

8.	Particularly with the backdrop that this was a culmination of the violence within that family between the deceased and the prisoner earlier in the morning of that day. Where both had resorted to the use of bush knives that saw both injured and taken to the hospital treated, returned to carry on without deterrence to the death of the deceased. And it is a staggering gruesome picture of the uncontrolled and illicit consumption of homebrewed alcohol that ignited both men to the level of violence here evidenced. This is the root cause as there is no reason and intellect in the face and thinking of both men. The deceased according to the evidence was calling out to the prisoner to settle his moneys for what he had caused him. And prisoner retaliated as he did.

9.	Homemade guns are forever in the possession of the public as is the case here. They are made illegally and are in the possession of the public illegally. And have the propensity real and imminent as here to arm and cause death, grievous injuries as is the case here. They are there in the possession of the public with threat to public safety and security. The sentence here will address and punish those who have these homemade guns, that the mere fact of owning one, has the very high propensity that it could be used in a violent crime. Robberies have seen influx of its use. It is therefore a serious aggravating factor that must increase the penalty. 
10.	And further Exhibit P3 the East Sepik Provincial Health Authority director of Curative Health Services medical report dated the 03rd day of May 2019 in respect of the deceased Jafford Hoffa, body identified by relatives and Police. Primarily the cause of death was Penetrating gunshot wound to Heart and Lungs. The date and the time of death was 19th April 2019 at 8 to 9pm. Significant abnormal findings at examination were young Melanesian male with height of 170cm and weight of 70 kilogram. Sustained laceration just above the left wrist. Sustained gunshot wound, entry wound from the back at T4-T5 level and exit wound at the base of the neck anteriorly. The Heart and lungs were penetrated by the Bullet. In addition, the fracture was also penetrated along with compound fracture of both devicles and sternum at the trachea sternoclariculus joints. It was signed on the 03rd of May 2019 by Doctor Raphael Malien Government medical Officer. These injuries depict the veracity of the use of the homemade gun upon the deceased. He stood no chance of survival and warrants a boomerang effect upon the sentence due upon the prisoner.
11.	Prisoner is a first offender and is aged 46 years old married with three children naturally and an adopted child drawing four children. He is a first offender originally from Japarakua number 2 village Yangoru Sausia District East Sepik Province. He is a carpenter by trade and holds a certificate from the Saint Joseph Technical College in Lae after finishing his grade 10 1994 at the Bishop Leo Secondary School. He was employed with a number of Construction Companies and before the commission of the offence was employed by a company San Yang International building the staff houses at the Boram Airport. These are set out in the Presentence and the means assessment reports that were ordered pursuant to the Probation Act. He has been produced no medical evidence that he suffers medical of a condition but has produced a photograph in the presentence report stating self-serving that he has a medical condition internally to his stomach. That would go a long way if there was a medical report which is not the case here. It will not mitigate the offence.
12.	The presentence report asserts that K50, 000.00 compensation has been demanded. But that is not verified independently as to the source from where that is coming from. Given that both deceased and prisoner are immediate relatives and were living adjacent to each other at the same place. Here also there is photographs depicting that the prisoner’s home was burnt down in the retaliation over the death and it has been listed out in the presentence report as amounting to K 45, 000.00, of which another K18, 000.00 is a trade store which was burnt down leaving the total damage as K 71, 000.00. This is stated by Henry Hoffa the brother of the prisoner in the presentence report. That would be considered as mitigating the offence as self help retaliating against a criminal offence but will not erase that a life has been lost nor should it be encouraged. Because the face of the law is one and remains either for or against. Any sentence imposed will consider mitigating in favour of the prisoner.
13.	This case by its facts is not as serious as that of State v Max Malala & William Kiu & Alois Bailey [2018] PGNC 357; N7445 (10 September 2018) where life imprisonment was imposed upon the prisoners for mercilessly cutting up the deceased with bush knives because he hit their canoe, conviction after trial on wilful murder as is the case here. A canoe let alone property can be replaced not so a human being. Human life is precious and sanctified, and any person who sees fit to effect a violent crime terminating a human life must face the fact that the Rule of law is Supreme and will not tolerate continuous repeated defiance. Here what has proceeded earlier has come and gone, it should not have culminated as here. Both were affected by the consumption of illicit homebrewed alcohol that is available without control, cheap and destructive as here. Prisoner is a first offender till this day and was under influence of illicit alcohol self-induced.

14.	And in this regard I adopt what the Supreme Court said as material to the facts and circumstances before me here, “The Supreme Court in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes have no boundary and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra) the parliament has already legislated the different types of homicide by classifying them into Manslaughter, murder, and wilful murder. In our view, it serves no purpose when the Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the value of lives that have been prematurely terminated. The notion of sanctity of life and Constitutional protection of lives therefore become meaningless and mere judicial rhetoric, Nimagi v The State [2004] PGSC 31; SC 741 (1 April 2004). This is underlying and applicable to the facts set out by this case which is considered in the determination of this sentence upon the prisoner.
15.	It is not therefore warranting that a suspended sentence be is equated with the loss of a life brutally at the hands of the Prisoner as here. The submission in this regard do not hold in his favour. He may have lost his house and trade store which will be rebuilt but not the life that has been lost his discretion violently exercised. It would not par out with the dictate of the Legislature and Kovi’s case supra and the facts circumstances set out above. It would not amount to being punished twice and would mitigate rather than erase the dictate by the legislature. Because it is a very prevalent offence and is promoted by the earlier violence and by that fact makes the offence serious against the prisoner who was armed with a homemade gun even later after the offence. And his preparedness to use it does not discount the offence. And it is an offence in the second category emphasizing on the basis of parity of sentence for like offences to be within the range of 20 to 30 years imprisonment. In my view that is well within the facts and circumstances of this offence now.

16.	In this regard I take due account of Simbe v The State [1994] PNGLR 38 that each case must be considered on its own merits. That I do so here bearing in mind that there are no special extenuating circumstances as observed in Ume v The State [2006] PGSC 9; SC836 (19 May 2006) here. It is not a case likened to State v Hagei [2005] PGNC 60; N2913 (21 September 2005) and therefore there will be no further deduction in respect of the sentence passed. And the facts do not spell out what was observed for the purposes of section 19 for suspension of the sentence within Tardrew, Public Prosecutor v [1986] PNGLR 91. This is a college graduate with a certificate in carpentry who has fared well in life who has resorted to violence over and above necessary, who is not humbled that the words of the deceased nephew have not hurt him. The force is disproportionate over and above necessary and must draw a sentence befitting the taking off a life by a dangerous and deadly weapon, a homemade gun.

17.	There is no disparity if the sentence of considered in the light of Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948 (28 May 2020). The prisoner is the master of his own destiny he chose to terminate a life and he ran a trial denying vigorously. He exercised his right but the sentence must be on par with like offences. His facts do not distinguish otherwise than the sentence due in the light of all above of 20 years imprisonment in hard labour minus the time on remand.
18.	The sentence is 20 years in Hard Labour for the wilful murder of Jafford Hoffa. Time in custody will be deducted forthwith. He will serve the balance in jail. A warrant will be issued in accordance.

Orders Accordingly

__________________________________________________________________
Office of the Public Prosecutor:  Lawyer for the State	
Office of the Public Solicitor: Lawyer for the Defendant