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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1765 & 1770 OF 2016
BETWEEN:
THE STATE
AND:
JUDE NIDUNG AND KENNETH YANGUN
(NO 2)
Waigani: Salika CJ
2024: 5th- 6th March; 2nd, 3rd, 4th & 15 April; 10th June; 1st & 5th July
CRIMINAL LAW – Practice and Procedure – Charge of Murder – Two prisoners – Sentencing principles and considerations principles of sentencing – Need for deterrence – Appropriate Sentence.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
Lawrence Simbe v The State [1994] PNGLR 38
Steven Lahe and Ors v The State (2006) SC836
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
The State v Bai [2022] PGNC 342; N9825
The State v Mari [2011] PGNC 132; N4306
The State v Ambane [2022] PGNC 451; N9993
State v Warimba [2025] N2863
State v Karl [2018] N7516
Counsel:
Ms L Jack for the State
Mr D Kayok for the Accuseds
SENTENCE
5th July 2024
FACTS
ISSUES
THE LAW
9. The penalty provided for the offence of murder is provided for under Section 300 of the Criminal Code. It reads:
(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; or
(b) if death was caused by means of an ac[- (0 done in the prosecution of an unlawful purpose; and (ii) of such a nature as to be likely to endanger human life; or
(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 0); or
(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or (e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (e).
Penalty: Subject to Section 19, imprisonment for life.
10. The maximum penalty is life imprisonment, but the Court must consider s. 19 of the Criminal Code and make a determination as to whether to impose the maximum penalty or to impose a lesser penalty. Section 19 (1) says that a person liable to imprisonment for life may be sentenced to imprisonment for life or any shorter term. This, the Court will consider and make the appropriate determination.
11. Over the years the Supreme Court has made judicial pronouncements on sentencing discretion under s. 19 of the Criminal Code and general sentencing principles which have been applied by the Supreme Court itself and the National Court.
12. For instance in Goli Golu v The State (1979) PNGLR 653, the Supreme Court determined that the maximum penalties should only be reserved and imposed for the worst form of that offence on a convicted person. For that reason, the question must be asked whether this murder was the worst of murders or not. If it is the worst, the Court would still have the discretion whether to impose the maximum penalty. This principle was applied by the Supreme Court in Ure Hane v The State (1984) PNGLR 105 and numerous other case precedents. The Supreme Courts and the National Courts have over time affirmed the principles established in those earlier Supreme Court precedents.
13. The Supreme Court in Lawrence Simbe v The State (1994) PNGLR 38 further added to the sentencing considerations saying that the circumstances in each case are different and so the Court must decide a sentence based on the peculiar facts and circumstances of the matter. With respect, I agree with that contention.
14. In Steven Loke and Ors v The State (2006) SC 836, the Supreme Court said: “In exercising its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine the punishment which fits the particular crime”.
15. All the above stated Supreme Court determinations are, with respect, very solid which the National Courts have over time observed and applied. This Court with respect, will do the same here. I note too that the above stated principles by the Supreme Court is to ensure the accused and prisoners rights to a fair trial and fair sentences are observed.
16. On the other side of sentencing, the National Court is reminded by the Supreme Court to consider the interests of the victim and the community as well. In Acting Public Prosecutor v Uname Aumane (1980) PNGLR 510, the Supreme Court said:
“Deterrence is one of the most frequently used purposes in sentencing under this theory. If the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.
The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.
The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose of sentencing. Legislation for probation is now under consideration. Until these programs are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.
The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as “vengeance”. This coveys the notion that the person who commits a crime must “pay” for it, or “deserves” it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as “payback”. This notion grew out of many years of tradition in the village. A person who broke the rules of customs of the village deserved punishment.”
17. With respect, I take into account the considerations stated in that case and adopt them here.
Personal Particulars of Each Prisoner.
JUDE NIDUNG
18. Jude Nidung is 33 years old from Yunzaing village, Finschhafen, and is of the Lutheran Church Faith. He is married with a three year old female child. He is educated to Grade 12 level at the Kokopo Secondary School. He then attended the Port Moresby Technical College in 2012. He has a work history with Channel 8 Television Company, and enlisted with the Papua New Guinea Defence Force in 2014 until now 2024. He was only one year on the job before this incident.
19. He was arrested in August 2015 for attempted murder and detained. After Jeremiah Yinu’s death, the attempted murder charge was dropped and instead charged for murder.
KENNETH YANGUN
20. Kenneth Yangun is 34 years old from Bela village, Mendi District, Southern Highlands Province. He is married with a nine year old male child. He was educated up to Grade 10 level at Tokarara High School and enlisted with the Papua New Guinea Defence Force in 2013 up to 2017 when he voluntarily got discharged. He is currently unemployed. He was arrested in 2015 for attempted murder but after Jeremiah Yinu died, the charge was amended to murder. He too was only two years on the job before this incident and after the incident he got discharged.
THE ALLOCATUS STATEMENT
21. On allocutus prisoner Jude Nidung read from a prepared typed statement which he then gave to the Court. The statement reads:
“Firstly, I would like to express my heartfelt condolences to the family of the deceased for their loss. I’m truly sorry and hope the family accepts my apology and find peace in their hearts and also find the true offenders.
I do accept the value of these proceedings, including the sentence decision on me as well as the jury’s verdict and the entirety of this case.
I have done my duty under the public policy in this account and case, and I am hereby pleading for a re-draft from the prosecutor for an adjustment of the same. This is my scriptural and public duty. Every action that I have taken in this matter has been to consistently honour, without dishonour.
I joined the force (PNGDF) in 2014 and after a year this unforeseen incident transpired. Throughout these years I have been struggling to make ends meet especially, when I have taken out a loan to help pay a private lawyer to help fight this case, to date this has affected both my work, family and personal life.
During these 9 years I have served my time in prison three consecutive times. First time was in August 2015, I served 2 months, then in the same year of October I served another month, then was granted bail. In March 2016 I served 3 months and now the currently I’ve in prison since the 10th of June 2024 at the Bomana Correctional Services, Port Moresby.
Life has been a real struggle, I’ve missed out on work operations, work trainings and courses all due to my bail conditions. This has really held me back with the potential I have to pursuer in life.
I am the second born in my family with four sisters’, my dear father Late Leuth Nidung passed away in 2020, a dreadful passing. My mother is a home maker and now a widow which leaves me the sole bread winner to my family.
In 2022 I met my partner, she has a daughter which was a year old then I have taken them in, we have been living together for the past 2 years. This is also a sole responsibility I have to play.
I am truly sorry for what has happened and I plea and ask the court to have mercy on me and be lenient with the sentence or grant me a non-custodial sentence.
The matter put forth for me by the court for acceptance and discharge.
Respectfully, JN”
22. On the other hand his co-prisoner Kenneth Yangun gave an oral statement apologising to the victim’s family for what happened. He gave an account of his own family situation and in the end asked for a non custodial sentence.
THE PRE-SENTENCE REPORT
23. A pre-sentence report was compiled for each of the prisoners by the Probation Officer. In relation to prisoner Jude Nidung, the Probation Officer said the prisoner was a suitable candidate for a suspended sentence. The officer did interview 4 people from the prisoner’s side and 2 from the victim’s side.
24. I do not think the Probation Officer understands and appreciates the seriousness of the offence of murder. Murder is the second most serious of homicide crimes second only to wilful murder. To suggest a suspended sentence on a convicted murder charge is to me with respect, amount to gross inadequacy of sentence on a person convicted on a murder offence. Taking away of life is termination of life itself from earth. It is a serious offence.
25. It was Jude Nidung who went back to Murray Barracks and mobilised other soldiers to go to Coronation Primary School to take revenge. This Court found that because of their drunken state, they even argued with a Major Timo, a more senior ranking Military officer to them and not paying any attention to obeying lawful orders for them to stop. Jude Nidung and Kenneth Yangun agreed discipline went out the window at that time when they failed to heed the Major’s orders to stop.
26. In relation to Kenneth Yangun, the Probation Officer recorded this:
“The Offender when interviewed at the Bomana Prison on the 24/06/24, stated that the problem happened in 2015. He stated that they saw a group of Sepik students wearing PNGDF Army uniforms. The offender with his co-accused (Jude Nidung) approached them and told them to remove the Army uniforms but unfortunately there was another Army officer who was with the students who ordered the students to attack the offender and his mates. In the ensuing melee, his co-accused (Jude Nidung) and his mate were badly beaten up by the students, when the soldiers heard that one of their mates was badly beaten by the students, they mobilized and retaliated and fought with the students. The offender stated that there was a big fight which also involved the general public as there was chaos everywhere. He stated that later the next day he heard that one of the students had died. He confirmed that there was a fight but he stated that he never laid his hands on the deceased in a fist fight, nor came face to face with the deceased and he did not know how the deceased died. He stated that because he was involved in the earlier fight with the students he was also blamed and accused for the death of the student.”
27. Kenneth Yangun was never at the Jack Pidik Park at 5 Mile. He was only put at the scene at the Coronation Primary School by State witness Chris Simi.
MITIGATING FACTORS
28. The following mitigating factors are noted:
(a) Both Jude Nidung and Kenneth Yangun are first time offenders.
(b) They both co-operated with police at the initial stages of the investigations.
(c) Both expressed remorse for victim’s death to the victim’s family only.
AGGRAVATING FACTORS
29. The following aggravating circumstances are noted.
(a) This was a senseless killing of an innocent 17 year old defenceless boy.
(b) This offence took place in a public place in a primary school.
(c) Offence took place in broad day time.
(d) This was a group attack of about 20 soldiers on a lone single defenceless 17 year old boy.
(e) Dangerous weapons were used including an aluminium iron rod.
(f) The prisoners were part of a group of soldiers in the PNG Defence Force based at Murray Barracks and as such outnumbered the lone victim.
(g) The PNG Defence Force Military Code of Discipline at the material time was lacking and forgotten.
(h) This type of behaviour in the PNG Defence Force is prevalent and is becoming more prevalent. The Code of Military discipline in the PNG DF is now effectively extinct, dead and non existent. Command and control is not visible in the PNG Defence Force, once the pride of the Country.
COMPARATIVE CASE PRECEDENTS
30. Counsel have usefully directed the Court’s attention to the following case precedents to assist it to come to a fair sentence on the two prisoners.
Convicted after trial for manslaughter. The Offender was a serving military officer. He was drinking at a Military Club at the Air Traffic Squadron Base (ATS) with the deceased and some other people when he started getting aggressive and argued with the deceased. The deceased a civilian guest at the Club was told to leave and as he was leaving the offender and his two comrades who were drinking with him grabbed timbers and followed him outside. The offender went to the deceased and used the timber, to hit the deceased on his head several times. The nail on the timber penetrated his skull and he sustained severe brain injuries from which he died some three months later. The offender was sentenced to 13 years in hard labour. Compensation (bel kol) was paid.
The prisoners in this matter were also serving military officers and is just one example of ill discipline in the army these days.
The prisoner was convicted after trial of murder s.300(1)(a). He had incited a group of villages to attack the deceased and his family. Although the offender did not directly kill the deceased he had encouraged his brother to do so and then prevented bystanders from coming to the aid of the deceased. This was a brutal and vicious group attack using knives and other weapons. He was sentenced to 25 years in hard labour with no suspension.
This case is relevant because the evidence is that Nidung went back to Murray Barracks and incited a group of soldiers to take revenge on those who assault him at 5 Mile.
(c) The State v Ambane [2022] PGNC 451; N9993 (Miviri J)
The offender was convicted after trial for murder. He and co-offenders, Telis Tui and Graham Hanguai, were police officers who had driven passed a group of youths sitting on the side of the road and stopped. They shouted at the youths that they were police officers and told them not to run but the youths ran away. They then fired three shots at the fleeing youths and one shot hit the deceased on his buttocks which resulted in his death. The Court imposed 22 years as a deterrent sentence.
This case precedent is relevant here because the offender there was a policeman and they too are notorious for their ill discipline.
(d) The Court in that case, in sentencing referred to two other National Court cases involving police officers; State v Warimba [2025] N2863 – a case where police officers took the deceased in their vehicle and assaulted him and he died from severe head injuries. The offenders were sentenced to 25 years in hard labour. And State v Karl [2018] N7516 where offender a police officer continuously assaulted the deceased on the head with the timber resulting in his death. He was sentenced to 18 years.
The two cases are only relevant to further demonstrate the ill discipline in PNG’s disciplined forces.
SENTENCE
31. The sentence to be imposed will be dependent on the peculiar facts and circumstances of this case. (See Lawrence Simbe v The State (1994) PNGLR 38). In that regard, I take into account the peculiar circumstances of this case. I found from the evidence that Jude Nidung and Francis Nasi were the cause of this incident near the Jack Pidik Park at 5 Mile, when they unnecessarily stopped a blue dyna truck carrying East Sepik students from Taurama Barracks. They aggressively asked a boy wearing an army issued jacket to remove it from his body. Major Timo intervened and asked them to stop as the students were children of Military officers. They argued with Major Timo. The boys on the blue dyna truck came down and assaulted them. Nidung and Nasi provoked the assaults from the East Sepik students in the blue dyna upon themselves. Major Timo had asked the two soldiers to stop what they were doing and told them he was with them and that they should leave the students alone. Nidung and Nasi instead argued with Major Timo and the male students came down and assaulted the two soldiers.
32. Nidung was able to escape further assaults and injuries while Nasi was taken to the Military Hospital at Taurama Barracks. Nidung went back to Murray Barracks and mobilised other soldiers to take revenge on the East Sepik students. About 20 soldiers jumped on an open back truck and told the driver to take them to Coronation Primary School. At the School, the soldiers entered the School gate, chased the students and Jeremiah Yinu was trying to climb over the School fence to safety but was pulled down by the group of soldiers and assaulted. He was taken to the hospital but died 3 months later.
33. I note that Nidung said in his evidence and in his record of interview that Major Timo ordered or told the male students to assault him and Nasi. I find that there is no suggestion Major Timo was drunk to easily tell the boys to assault them. Why would Major Timo tell the students to assault the two soldiers. A student was aggressively approached by the two soldiers to remove the Army issued jacket he was wearing. That action by the two soldiers was not necessary. Their actions triggered the reasons for their own assaults by the students. Major Timo had no control of the situation because Nidung and Nasi provoked the students. I find Nidung’s story on that aspect of the case to be a lie. Major Timo has passed on. He is not here to defend himself from Nidung. Nidung did say this in his record of interview when Major Timo was alive but he could not defend himself as he is no longer alive.
34. The Probation Officer recommended both prisoners to be suitable candidates to be placed on probation and or suspended sentences. I have considered his recommendations and suggestions and determined that if this Court were to impose such sentences, the sentences in my respectful opinion, will be grossly inadequate. Taking away a life is a very serious crime. Murder is a serious offence. That is why it carries a maximum of life imprisonment. For those reasons, I will discard his recommendations, with respect.
35. The prisoners are soldiers and soldiers have a Code of Military discipline to guide them in their daily lives. Discipline is at the top of that guide. They allowed themselves to be in this situation. They now cannot and should not blame others of their predicament. They have tried to put the blame on the students and Major Timo. The soldiers in my opinion, with respect, did not think properly and reason logically why they should go to the School to retaliate.
36. They have raised the matter of extenuating circumstances in paragraph 17 of the defence submission. Extenuating circumstances is a situation that lends an excuse for one’s action. In this case, I do not find any extenuating factors to reduce each of the prisoners culpability. Even if Major Timo told the students to assault the soldiers and the students did, I could not consider that as an extenuating factor because the soldiers stopped the students on a moving vehicle. They caused the entire saga to explode. They are accountable for their own actions.
37. Secondly, why go back to the barracks and mobilise other soldiers to retaliate. To mobilize other soldiers is an aggravating factor rather than an extenuating or a mitigating factor.
38. The defence submitted that the two prisoners’ participation in the assaults were not sufficiently established. That is a point for appeal if they decide to go there. The prisoners were present at the scene of the crime and their respective presences at the scene was willed in that they were there to retaliate. About 20 soldiers came. They were the only ones who were there for a reason. Section 7 of the Criminal Code was invoked for that purpose. Under s. 7 of the Code, they are principal offenders.
39. I consider the deterrent aspect of this case to be the most relevant to apply in this case. Disciplined forces, the Army, Police and Correctional Services must by now know that it is wrong to do what the prisoners in this matter did individually and collectively. Soldiers, you are not at war with civilians. Your rules of engagement are very strict and must be exercised with much restraint and caution with civilians and in combat in warfare.
40. Character references provided do not reflect what happened in this case. They are cancelled out by the seriousness of the offence.
41. Considering the circumstances of your case and taking into account all your personal particulars, the family situations, the mitigating factors, aggravating factors and your respective pleas for leniency and mercy, I impose a sentence of 25 years imprisonment on Jude Nidung and on Kenneth Yangun. I impose 20 years imprisonment in hard labour. The period of 2 years spent in custody awaiting the trial and sentence is taken off from both prisoners. The total imprisonment term for Jude Nidung is 23 years imprisonment in hard labour and for Kenneth Yangun, a term of 18 years imprisonment in hard labour. The reason for Jude Nidung’s higher penalty is that he is the cause of the fight and the assaults and he is the cause for Jeremiah Yinu’s death. The equation is very simple to understand and that is that first, he and Nasi started the matter at Jack Pidik Park, 5 Mile, and he went to the Barracks and mobilised the soldiers to retaliate. He is therefore the reason why Jeremiah Yinu is now dead. Jeremiah Yinu would be alive today, if Jude Nidung restrained himself from mobilising the other soldiers to retaliate. There was direct and circumstantial evidence to make the Court to draw inferences.
42. The sentences are to be served at Bomana Corrective Institution in the National Capital District.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners
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