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State v Yari (No 2) [2024] PGNC 54; N10701 (20 March 2024)

N10701

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 827 OF 2022

THE STATE

V

MURUK YARI
(No 2)

Waigani: Miviri J
2024: 19^th & 20^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – Stabbing in Dark Ambush – Over Protectiveness of Female Companion – Deceased Stabbed as he stepped into the Dark – Some Preplanning – Mortal Wound to Chest Heart & Lungs – First time Offender – No Expression of Remorse – Prevalent Offence – Strong deterrent & punitive Sentence – 30 years IHL.

Facts
Accused was with the Deceased with a female who stepped into the dark. He came out of it grasping for air and bleeding from his mouth. He was stabbed in the chest by the Accused.

Held
Right to Life Section 35.
Protection of the law.
Trial.
First time offender.
Prevalence of offence.
Strong Punitive Deterrent Sentence.
30 years IHL minus remand.

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948
Kovi v The State [2005] PGSC34; SC789
Tapea Kwapena v The State [1978] PNGLR 316
Simbe v The State [1994] PNGLR 38
Ume v The State [2006] PGSC 9; SC836
State v Hagei [2005] PGNC 60; N2913
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Paru (No 3) [2021] PGNC 385; N9248
State v Pritchard [2016] PGNC 15; N6183
Hagena v State [2017] PGSC 55; SC1659
Marangi v The State [2002] PGSC 15; SC702
Tanga v State [1999] PGSC 4; SC602
State v Er [1998] PGNC 78; N1749

Counsel:
L Jack, & S. Suwae, for the State
D. Kaiyok, for the Defendant

SENTENCE

20^th March 2024

1. MIVIRI J: This is the sentence after trial of Muruk Yari who was convicted of wilful murder of one Saki Thomas pursuant to section 299 (1) of the Code.
   
2. On the 11^th October 2020 around 10.00pm a young lady with her husband were fighting at the Korobosea International School Bus stop. Accused recognized her as a relative so he went and stopped the altercation. Both he and the young lady walked down to Mahuru Village stopping at a Tucker Shop where the accused bought a ready-mix blue berry spirit and four (4) loose cigarettes. And together they sat infront of the tucker shop and drank the spirit in a small cup they had cut from a container. Whilst there for some time, the deceased Saki Thomas came there to the tucker shop with 500ml coke container in his hand. He began asking personal questions to the young lady who answered. Both begun holding each other and then kissing. The Accused then spoke in language and told her to get up and go.
   
3. It was already past 1.00am going to 2.00am of the 12^th October 2020. The young lady walked ahead whilst the accused followed her, then the deceased followed both behind. The accused asked the deceased where exactly he was going, and he replied that he wanted to go to Sabama to see his brothers. They proceeded onto the track out of the tucker shop’s light. About two (2) minutes later the deceased came back from the dark to the store struggling to breathe with blood coming out from his mouth and chest and fell. He had been stabbed by that time by the accused there. Who had intended to kill him and stabbed him in the right side on the chest from which he died.
   
4. These are the facts upon which the prisoner was arraigned and found guilty of, firstly of intending to kill the deceased, and killing him pursuant to section 299 (1) of the Criminal Code. By subsection (2) the prisoner is liable to be imprisoned for life. That is the maximum prescribed penalty due should it be determined that this is the worst case of wilful murder. Here the facts and circumstances depict a determinate term of years imprisonment because it is not the worst case: Avia Aihi v The State (No 3) [1982] PNGLR 92. It is relevant to lay out that he will be sentenced on the basis of the circumstances and facts peculiar to his case. He is a first time offender with no formal education, married with a child originally from Lavuko village Kuare LLG in Kagua District Southern Highlands. He is of the Pentecostal Church faith and practises that whilst in prison. Which is evidenced by the Character Report dated 27^th July 2022 prepared by Corporal Greg Teine Acting Chaplain of the Bomana Corrective Institution. This is the spiritual reformation of the prisoner, but that has not materialized into its fullness.
   
5. And his allocutus sheds further when he states: “I am sorry to the Court for taking its time on my case. I say sorry to the State, CIS. Secondly, I say sorry to GOD, I am sorry I did not touch his blood on my hands. I did not do it. I say sorry to the family that I did not commit. I say sorry to my family, my wife and child. I do not know time I have not been to school. I am sorry. Have mercy I have been in custody for a long time in remand. Have mercy on me. I am a first offender. I say sorry.” This allocutus does not evidence what the Character reference by the Chaplain set out above in evidence. He pleads for mercy, but he did not accord that upon the deceased. And he has taken no responsibility for his actions. He disputes his involvement. There is no real change in his character. He does not accept the decision of the Court and maintains that he did not stab the deceased. He did not touch the blood of the deceased. There is no real remorse expressed. For the determination of an appropriate sentence this is a very serious aggravating feature, he is not sorry that he has taken the life of the deceased by stabbing him with the knife as he did. What is mitigating is that he is a first time offender.
   
6. But the seriousness of the offence laid out by Exhibit P5 Medical Certificate of death dated 21^st October 2020 issued by Doctor Kotapu that Saki Thomas who was 30 years old, usually resident at Sabama Kaugere area, died of pulmonary hypovolemic shock from Stab wound to the right chest. It cannot be ignored that the chest is a very vulnerable part of the human body underneath which is the heart and the lungs. Both very vital organs for the survival of a human being. To be stabbed there is no accident, or good fortune. It is mark and work of a calculated attack intended to kill the recipient. And that was the case here against the prisoner. A stab there is indicative of death instantly which was the case here. It is calculated and fatal, it is not intended that the deceased will be hurt grievously. There is intent to kill the deceased by the prisoner. He has discharged that intent with the death of the deceased. This is clear from the realization that has sunk into the prisoner deduced from Exhibit P3 Statement of the Police Investigator Yaku Gwampom confirms that the Accused surrendered to Boroko Police on the 13^th October 2020 a day after the allegation. He realized there and then that he had taken the life of another fellow human being so surrendered to Police.
   
7. He could have had his own life terminated as is clear from the evidence of the father and the uncle who were called in the trial. That was leading when they were at the police Station looking for him. That is how serious the matter is. And Sentencing must not ignore that fact that this is an offence that could have easily been echoed back by the relatives of the deceased the prisoner. The sentence therefore must be proportionate to the crime evidenced by its own facts and circumstances: Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948 (28 May 2020). The initial sentences that were dished of 40 years, 32 years, 28 years, and 20 years was varied by the supreme Court to 37, 29, 25 and 17 years respectively for wilful murder committed by the appellants upon the deceased. He had burnt down their house and they reacted in that manner. It was de facto provocation not taken into account by the sentencing Court at first instance. There is no evidence of any de facto provocation to prompt what the prisoner did. He became overprotective and on the verge of jealousy so much so that he ambushed the deceased who came into the dark where he was in wait for him. He lunged calculated at the chest inflicting the fatal wound that led to his demise immediately.
   
8. Life is precious and sanctified. It is lived only once therefore the termination of the life of Saki Thomas is felt by the father who has provided a victim impact statement filed of the 18^th March 2024. He worked as a security guard and his wife as a cleaner to bring their son, second born out of four children to be a university graduate in science with a Bachelor of Science obtained from the University of Goroka in 2018. He became a high school teacher and was teaching at a Catholic Secondary School in Alotau. He was home on holidays with the parents when he met his demise at the hands of the prisoner. The father has lost out completely on the help promised by this son who was going to buy a piece of land erect apartments on it for rental to help the parents. It is particularly disheartening because the mother had withdrawn all her savings in the Nasfund to fund his university four-year studies. All have been in vain now that he has died at the hands of the prisoner. He had aspired to become a pilot to help his parents’ lives. The father pleads for Justice that the prisoner should face the full force of the law because he has left them with a huge hole in their hearts.
   
9. This is an emotional plea no amount of sentence will heal. Because his son will not be resurrected by the imposition of any sentence in the discretion of the Court. The rule of law must be supreme as this is an emotional crime upon the parents and immediate relatives. The sentence must equate the pain they feel for their son. It must emphasize and prevent self-invitation that is there in the hands of the relatives against the prisoner. The sentence is not to vindicate but to sound out the pillars of the rule of law, and the right to life under section 35 of the Constitution. That is why the discretion accorded as set out above. But there must be consistency which is emphasized by Kovi v The State [2005] PGSC34; SC789(31 May 2005). To my mind the present case falls into category 2 spanning a range from 20 to 30 years imprisonment. It was a vicious attack to the most vulnerable part of the body, the chest which encloses the heart and lungs. It would appear there was preplanning which is evident from the asking by the prisoner to the deceased where are you going. And the prompt to Ruthy Anthon to get up and go to avoid the deceased following it would appear. The killing was prompted by the actions of the deceased to Ruthy Anthon relative of the prisoner. He was armed with a knife that he used in that manner upon the deceased. He paid no heed that his life was under no threat from the deceased in any way or form. There are no evidence deceased had any weapon that he was using in a menacing manner against the prisoner to justify the attack by the prisoner on the deceased. No evidence has come to light within the realm of Tapea Kwapena v The State [1978] PNGLR 316. Prisoner was acting in the course of self-preservation on the threat that was issued by the deceased. This is not what the facts here disclose to warrant what the prisoner did.
   
10. Because that is not the discretion afforded by the witness, Ekai Hangau. Not long the Goroka man returned holding his shirt in his hand from the front around the collar and the neck area holding them together. He was bleeding from the mouth and the chest, and he was struggling to breathe. He was taking short gasps of air with his mouth open demonstrating that he was short of breath. That he was seriously injured from his chest as there was blood coming from there and the mouth. He went up a short distance and collapsed to the ground. This is evidence that to my mind establishes that the prisoner attacked the deceased with that knife and injured him mortally in the chest, the lungs, and the heart. To give that kind of injury comes from a preplanned act and the deceased is caught by surprise in the dark that he ventures into after the prisoner and Ruthy Anthon. He would have been prepared in light. Here he was going from the light into the dark following the prisoner who inflicted that stab wound to the chest. His sight would have taken time to acquaint to be able to see what was in the dark having come from the light from the tucker shop’s light. This is the moment when the deceased was momentarily blind, an advantage to the prisoner who inflicted the mortal wound to the chest, the demise of the deceased.
    
11. No one should have the discretion to take the life of another human being in this way. Clearly the prisoner was overprotective of Ruthy Anthon and saw the deceased as making advances to her. Jealousy set in with his intoxication and keen on ensuring her welfare because she was the daughter of a leader and relative, he did what he did, stab him in the chest killing him. He immediately surrendered as set out in his own record of interview set out above. And made the admissions he made to the witnesses Wesley Feta, Gibson Bakoyefa and Samson Ikati. These were made almost immediately after the offence when events were fresh in his mind, and he made the admission, Mi Muruk Yari mi kilim pikinini bilong yu mi kam surrender long police,” That in itself calls for a stern deterrent and punitive sentence to be imposed upon the prisoner. He will return to his family and loved ones after he has duly served his time. He has passed eternity upon the deceased who no amount of time in jail will bring back to the family. This is the core of the right to life by section 35 of the Constitution. Its reinforcement in and under section 299 of the Criminal Code is so that this offence is not committed at random, as it pleases anyone.
    
12. In this regard I take due account of Simbe v The State [1994] PGSC 18; [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. It is not as serious and well planned as in the case of State v Paru (No 3) [2021] PGNC 385; N9248 (3 November 2021) who was a well-trained soldier who used that knowledge and skill to kill the deceased as he did. He was sentenced to 30 years IHL for wilful Murder. It would not equate what was seen by this court in State v Pritchard [2016] PGNC 15; N6183 (12 February 2016) to come to the sentence of 30 years for a well planned and executed crime of wilful murder. She was the co accused of James Paru convicted. And it certainly will be nowhere near Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). That was a well planned well executed crime of wilful murder of eight (8) persons at sea. It drew out the death penalty.
    
13. It would not be erroneous to sentence the prisoner to 30 years imprisonment in hard labour given all set out above. Nor would it be erroneous in my view to go past that head sentence. When a man cold bloodedly takes the life of another fellow human being in this way, and express no sorrow, remorse for the life of that person, and continues to defy logic and common sense, it must stress that section 35 of the Constitution is curved out on Stone. It follows that, Thou Shall not Kill, is by HE who knows sees all. And it is not wrong that the prisoner will be sentenced to 30 years imprisonment IHL. Because these are facts not likened to Simbe’s case (supra) or Marangi v The State [2002] PGSC 15; SC702 (8 November 2002). It is not by fists as in Tanga v State [1999] PGSC 4; SC602 (19 April 1999), which was a conviction of manslaughter, and quarrel over sentence of 12 years for that crime in the Supreme Court. The sentence at first instance was confirmed and the appeal was dismissed. Nor would this equate to State v Er [1998] PGNC 78; N1749 (31 July 1998). That was a plea to murder where the sentence of 8 years was imposed upon the prisoner wife who killed the de facto of her husband. This is not a crime of passion as is that case of murder. This is wilful murder given its facts and circumstance not warranted in the manner that the prisoner has dished out. It is particularly serious that no mercy has been accorded in the light of all set out above.
    
14. In the aggregate I hereby sentence the prisoner Muruk Yari of Kuare, Kagua, Southern Highlands to 30 years imprisonment IHL. Time in Custody will be deducted forthwith, He will serve the balance in jail forthwith.
    

Orders Accordingly,

__________________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Defendant