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State v Kagai (No 2) [2024] PGNC 243; N10910 (15 July 2024)

N10910

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 411 & 412 OF 2021

THE STATE

V

KIP KAGAI & GELING ANTON
(No 2)

Minj: Miviri J
2024 :03^rd & 15^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE –Murder S 300 CCA –blunt Trauma to Head & Abdomen – Internal Bleeding to Head & Abdomen – Body found In Ditch – Identification – Circumstantial Evidence – Death Undisputed – Intent to Cause GBH – Section 7 & 8 Role Of Prisoners Death of Deceased – Preplanning In Killing Deceased – Lured Out On Pretext to Buy More Beer – Lies Concocted Out of Conscious Sense of Guilt – Well Planned Murder – Body Disposed Off to Conceal Murder – Evidence of Fume Rage of Deceased Unsettled over His Gun In Possession of Accused – Weapon Blunt Object Used to Inflict Injury on Deceased – Strong Deterrent & Punitive Sentence – First Offenders – Remorseful On Allocutus – Protection of the Right to Life – 20 years IHL x2.

Facts
Deceased was found dead in a deep ditch by his own grade seventh grade son. He had been hit over the head with a blunt instrument and in the abdomen causing his death. There was intent to cause GBH and death resulting.

Held
Death well planned.
Body dropped concealed in deep drain.
Circumstantial evidence
Prisoners acted in concert to Kill and dispose off body.
Strong Deterrent & Punitive Sentence.
Protection of Life.
20 years IHL x2.

Cases Cited
Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000)
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Golu v The State [1979] PNGLR 653
Simbe v The State [1994] PNGLR 38
Gimble v The State [1988-89] PNGLR 271
Amoko, The State v [1981] PNGLR 373
Wani v The State [1979] PNGLR 593
Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
F. K. Popeu, for the State
R, Mangi, for Defence

SENTENCE

15^th July 2024

1. MIVIRI J: This is the sentence after trial and conviction of Kip Kagai and Geling Anton both of Tombil, South Waghi, Jiwaka Province convicted for the murder of Tom Dale.
   
2. On the 20^th June 2020 around 10.00pm to midnight Kip Kagai and Anton Geling were consuming alcohol with Tom Dale at the Kurumul Tea Provincial headquarter at Jiwaka. Around midnight both accused told the deceased to follow them to go and look for more beer at Tombil village. One of the securities discouraged him but he followed both out. Between 12 midnight and 1am of the 20^th and the 21^st June 2020, the Accused Geling Anton returned to where they had earlier been drinking and left his small knife, then take the bush knife belonging to one of the securities and left again. On being asked about the whereabouts of the deceased, he replied to the effect that he Geling, had left the deceased with a woman in the woman’s house. But the next morning the deceased’s dead body was found lying in a drain some 40 meters or so away from the Kurumul Tea Provincial Headquarters.
   
3. When postmortem was conducted, Tom Dale was found to have died from Intra Cranial Haemorrhage because of a blunt force trauma to the head. And also, he suffered a splenic contusion from a blunt abdominal trauma. And the allegation against both accused were that they had acted together aiding and abetting each other in luring the deceased away from the securities causing his death and then leaving him in the drain where he was found in the morning. And both had intended to cause him grievous bodily harm from which he died. Both aided and abetted each other in the murder pursuant to section 7 (1)(a), (b) and (c) of the Code.
   
4. The indictment against both was pursuant to section 300 (1) (a) of the Criminal Code Act of murder reading: -
   
   • (1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: –
     

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

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

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

5. The prisoners were affected by the consumption of alcohol, and which in my view was the stamina leading to the assault upon the deceased for the gun that was in the possession of Kip Kagai. The injuries which are detailed out by the medical report under hand of Doctor Jon Gabriel, autopsy conducted on the 25^th June 2020, show that the head had left upper brow swelling with bruising and erythema. The neck left peri-orbital hematoma bleeding from the left nose. The chest left chest abrasions. These were the external examination. In the internal examination chest lungs appeared normal. No pleural collections. The abdomen splenic lacerations (superior pole) Bowels and stomach appeared erythematous and oedematous. The conclusion was that “the above findings are suggestive of blunt head, chest and abdominal trauma leading to intracranial haemorrhage (possible basal skull fracture), bowl and splenic contusion.” To be assaulted in this manner to go beyond the skull to cause fracture at the basal would amount in my view to a vicious attack. And where it was not content that one injury was evident to go and inflict two more serious injuries extending into the vitals beneath the surface of the skin shows the ferocity of the attack. Such is the conduct of the prisoners evidenced jointly. It leaves nothing except to say this infliction culminating left nothing less than an intent to cause grievous bodily harm. Which is coupled with the fact that both had lured him out of any help from where they were drinking. In that respect it can be deduced that this was a well-planned attack on the deceased. He was one person against two. He stood no chance with the head injury that no doubt would have left him in no way to protect himself from the other injuries that came. He was at the mercy of the prisoners as they pleased. When Geling Anton came back to pick up the bush knife he was getting himself prepared for the next episode that was coming of the possibility for retaliation for his actions.
   
6. This is the father of two very young children who have been taken off the bosom that milked them. Would they live the same life that he gave them now that he is gone from their bondage. That was very evident in the way the son Salvo Dale expressed when he gave evidence. He broke down in court on record no fault of his. No one in this world must be denied their father prematurely in this way. Children who are made to fend for themselves without the father, or a parent must be protected from those who venture in this manner. In this regard it should be the factor that would draw against participation in this offence in the case of Kip Kagai. He is a 31-year-old married man with three children who are in grades 8 for the first, grade 5 for the second, and grade 2 for the third. Originally from Tombil, he was a first offender. He was very remorseful stating he was very sorry for late Tom Dale his family including his own family. He accepted the decision of the Court. And pleaded that mercy be accorded in the sentence passed.
   
7. Geling Anton a 43-year-old from Tombil also was resident at Pepik. He was not married but a first offender. He also expressed remorse in Court before GOD, and the Court. He also expressed sorrow and remorse for his actions in particular to the family of Tom Dale, his family, and also his own. Like his co prisoner he also pleaded that mercy be accorded in the sentence that was passed upon him. Both prisoners had seriously abided by the terms of their bail conditions showing their respect for the law. It was a credit to both as this was their first offence in their lives. In that respect both were entitled to leniency for this unblemished record. Each was a security guard employed then at the time of the offence. Both did not have any further employment record after that. Each was a subsistence farmer. Personal circumstances must always be at the prime when one is drawn into an offence: Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000). In the face of sentence, it will not bar what is drawn by the facts and circumstances upon the prisoner. Because he is sentenced upon his own facts and circumstances. Prime is the will of the Legislature not tariff and range: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
   
8. Voluntary intoxication does not guise the full force of the law upon those who offend in this way. It is particularly serious because 40 meters from where he was dumped into the drain (4) four to (5) five meters down, his children were being taken care of by a good samaritan who had a heart for them and their father. Both slept peacefully that night to awaken and come upon their father who was dead in the drain. How cold hearted were the prisoners to do this to two innocent and very young children. And all because of a gun that was in the possession of their father because of the position he held in the organization all worked for. Both prisoners did not show any remorse or reluctance to do what they did to the deceased. Both prisoners were equally responsible for these injuries that the deceased sustained. Both were last seen with the deceased alive with them. And these injuries did not come out from the fall into the drain. That was specifically ruled out by the evidence of the doctors. So, these injuries emanated from the attack by the prisoners upon the deceased. He stood no chance from the compounded attack.
   
9. It is therefore a very serious offence of murder that will draw the maximum sentence of life imprisonment if the aggregate of their behaviour is that it is the worst case of murder: Golu v The State [1979] PNGLR 653. Both are first offenders who led good lives prior to this day. First Offenders in my view with very good lives, but for the offence now convicted deserve leniency. But that must be exercised with caution balanced out with their criminal conduct now convicted. It should not be discounted that life is lived only once. This is fundamental by section 35 right to life by our Constitution. It is supreme Law and must be accorded compliance where there is a serious breach as is the case here. But the toil of part taking in alcohol invested from the afternoon to late in the night has climaxed with the offence. No length of sentence will ever bring back the deceased from his grave, but it remains that the facts and circumstances here will determine what is proportionate and due the prisoners each for the offence: Simbe v The State [1994] PNGLR 38.
   
10. Kip Kagai is from Tombil, Minz, Jiwaka. He is of the EBC church. Geling Anton is from Taimil, Minz, Jiwaka and resides at Pepik, Kunjip. Both are security guards. First offenders each cannot be distinguished in the demise of the deceased. Both will be equated in the sentence that is due both: Gimble v The State [1988-89] PNGLR 271. Parity of sentence does not apply by the facts set out here in the verdict. Each will be accorded same penalty for the crime minus the time of remand of four (4) months before they were granted bail. Both are perpetrators of the allegation before the Court for the death of Tom Dale. Their roles in part and partial of that offence is clear as principal offenders in Amoko, The State v [1981] PNGLR 373, It is very clear both prisoners are aider and abettor within Wani v The State [1979] PNGLR 593. There is evidence that together they were in company with the deceased before he met his demise. They aided and abetted each other in the commission of the murder of the deceased. It means there will be no distinction made in their roles in the offence. Both will be sentenced the same. And the reason is simple each played the role necessary to inflict the injuries to the deceased, no distinction will be made according: Gimble (supra).
    
11. I am mindful that tariff and range will be considered in the determination of an appropriate sentence due. In this regard, I take due account of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) which sets that the range here will fall in the third category because the facts and circumstances here illuminate that, this was preplanned offence. And it was vicious in the way it was carried out. This is very evident from the injuries that were inflicted upon the deceased. And his body was concealed and dumped into a drain discovered by the son as he walked that morning from where he was sheltered for the night. And the injuries portray that there was very strong desire to do grievous bodily harm upon the deceased. I have set out the medical report in detail to emphasize this set out above. It speaks of the intent buried in the minds of the prisoners illuminated by the extent of the injuries inflicted upon the deceased. And in my view erroneous to determine that it is between the first and second categories of Manu Kovi (supra). I consider that the facts circumstance set this out as category three. And that is where the sentence will flow from.
    
12. It is very evident that the extent of the injuries speak of a weapon readily at the disposal of the prisoner Kip Kagai, the gun tucked into his trousers on his side covered by the shirt he wore. That is the weapon that was so grievously used on the head of the deceased leading to the injuries that we observed detailed out by the doctors. And no doubt the other injuries have bearing on the role each played together out on the deceased. The motive and the opportunity at the disposal led to his demise. Given the totality of these evidence and circumstances, the third category will be where this offence falls. That is a starting point of between 20 to 30 years imprisonment. There must be parity in sentence dished, though the discretion remains that the maximum due here is life imprisonment. That is the will of the People by their legislature, parliament. I find no extenuating circumstances consistent with State v Hagei [2005] PGNC 60; N2913 (21 September 2005) swaying a term other than what is sanctioned by law given their facts and circumstances. It does not demonstrate any facts and figures to be consistent with Tardrew, Public Prosecutor v [1986] PNGLR 91, so suspension of sentence is not drawn here.
    
13. In my view concealment of the body, disposal of the body after the commission of the offence must draw as a very serious aggravating feature of the case. And the penalty must follow suit to emphasise that fact drawn out by section 35 of the Constitution comparably. Further where the level of violence depicted out by the injuries upon the body must also draw similar. These in my view includes the extent of violence that is perpetrated to come out with the eventual result of the demise of the deceased. No men should be subjected to torture and inhuman treatment at the leisure and pleasure of the prisoner. Here I am mindful of section 36 of the Constitution that all men must be accorded dignity as a human being. This is not a plastic covering from a food item that has been consumed and waste disposed off in this manner. It ought and must draw the sanction of the law upon those who see fit to indulge. The prisoners must forfeit their liberty to the required level by these facts. In so holding I do not discount that each case is drawn sentence by the dictate of the legislature. Because the Court is not empowered to legislate: Kumbamong (supra).
    
14. There are no mitigating circumstances outweighing the aggravating features set out above. Both have expressed remorse in their respective allocutus and are first offenders. That record would have been maintained had it not been for the voluntary intoxication by both and the deceased. It would not be disproportionate in my view to impose 20 years imprisonment in Hard Labour. And I so impose that upon the prisoners Geling Anton and Kip Kagai for the murder of Tom Dale committed on the 20^th June 2020 at Kurumul Tea Provincial Headquarter.
    
15. The sentence of the Court is 20 years imprisonment in hard Labour upon both prisoners forthwith. The four months including any further time on remand will be deducted forthwith. Both will serve the remainder in jail. A warrant will be issued in those terms forthwith.
    

Orders Accordingly

__________________________________________________________________

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defendants