N11522

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 104 OF 2024

THE STATE

V

NYETA PUNDI

WABAG: ELLIS J
13, 14 OCTOBER 2025

CRIMINAL LAW – MURDER - s. 300(1)(a) CCA – Plea – Offender shot victim in the thigh with a gun – Co-offender shot the victim in the chest – Serious and prevalent offence – Need for deterrence – Allowance made for plea, the offence involving a relative, and payment of compensation – 20 years IHL.

Brief facts
The offender (who entered a plea of guilty) and a co-offender (who entered a plea of not guilty) each used a gun to shoot the victim.  The offender shot the victim in the thigh, and the co-offender shot him in the chest, said to be due to a land dispute.

Held
Guilty plea
Importance of protecting life
Prevalent offence
Kovi, category 3
20 years IHL
Period on remand deducted
Balance to be served

Cases cited
Kesino Apo v The State [1988] PNGLR 182; SC353
Kovi v The State [2005] PGSC 34; SC789

Counsel
J. Kessan, for the State
L. Toke, for the defendant

SENTENCE

1.	ELLIS J: 	Nyeta Pundi, of Kanomanda village in Kompiam in Enga Province, was initially charged with wilful murder but the prosecution accepted his plea of guilty to a charge of murder, based on section 300 (1) (a) of the Criminal Code Act 1974 (CCA), a charge which carries a maximum penalty of life imprisonment.

2.	Section 300, so far as is presently relevant, provides as follows:

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 …

Allocutus

3.	Since the uncontested evidence upon which the State relied supported a conviction, a conviction was recorded then the offender was provided with an opportunity to address the Court, prior to closing submissions.  

4.	What he said may be summarised as follows:

(1)	The victim was like a father to him.
(2)	This incident occurred due to a land dispute.
(3)	The offender wrestled with the victim over a gun, which accidentally discharged, and he shot himself.
(4)	Compensation of K10,000, ten pigs and one cassowary have been paid.
(5)	The offender proposed making further payments of compensation.
(6)	He apologised to the victim’s family and his own family.
(7)	His request was that the Court show him leniency.

Evidence

5.	The evidence placed before the Court by the State was the Police brief being pages numbered 1 to 37 (Exhibit A), but with pages 21-23 (MFI 1) excluded.  No evidence was relied on by the offender in the sentence hearing.  

Defence submissions

6.	It was said that the offender is aged 32, married with two children, that he is from Kanomanda village, and that he is the third of four children born to parents who are still alive.  It was said that he has never been to school and is a baptised member of the Seventh Day Adventist church.

7.	It was said that this incident took place in a family setting in that the offender killed his uncle.  Reference was made to Kesino Apo v The State [1988] PNGLR 182; SC353 (Apo) in support of the proposition that such a circumstance was a matter that was relevant to sentencing.  A submission was made that the shooting occurred during a “tug-of-war” over a gun.

8.	The aggravating factors were said to be the prevalence of this kind of offence and that a gun was used.  Mitigating factors were said to be the plea of guilty, remorse being expressed, and the payment of compensation. 

9.	After referring to Kovi v The State [2005] PGSC 34; SC789 (Kovi), it was contended this case fell within category two, for which imprisonment for between 16 and 20 years was suggested.  It was suggested that the starting point should be 18 years with a reduction for 2 years and 8 months already spent in custody. 

Prosecution submissions

10.	For the State, it was observed that the accused had been charged with wilful murder and had entered a plea of guilty to a charge of murder.  It is noted that the effect of that lesser charge is to lower the range of the applicable term of imprisonment.  Aggravating factors were said to be the use of a gun and the prevalence of this kind of offence, both in this province and the country in general.   It was noted there was the use of a dangerous weapon, the presence of two men, a brutal killing, in cold blood, of an innocent man, who was unarmed at the time.  This was said to be a case where there was a complete disregard for human life.  

11.	A submission was made that, by reference to Kovi, this case falls within category 3 or category 4 and that a sentence in the range of 20 to 30 years was appropriate.  It was accepted that a period of 2 years and 8 months should be deducted due to time spent in custody, on remand, prior to the hearing of the charge now under consideration.

Relevant law

12.	In Kovi, a judgement in which the Supreme Court provided guidelines for sentencing, the suggested sentencing ranges for the offence of murder were set out under the following four categories:

Category 1					12-15 years

Plea						No weapons used.
Ordinary cases.				Little or no pre-planning.
Mitigating factor with			Minimum force used.
No aggravating factors.			Absence of strong intent to do GBH.

Category 2					16-20 years

Trial or plea					No strong intent to do GBH.
Mitigating factors with			Weapons used.
Aggravating factors.			Some pre-planning.
						Some element of viciousness.

Category 3					20-30 years

Trial or plea					Pre-planned. Vicious attack.
Special aggravating factors.		Strong desire to do GBH.
Mitigating factors reduced in 		Dangerous or offensive weapon used
weight or rendered insignificant 	eg. gun or axe.
by gravity of offence.			Other offences of violence committed.

Category 4					Life imprisonment

Worst case - Trial or plea			Pre-meditated attack.
Special aggravating factors.		Brutal killing, in cold blood.

13.	As the prosecution bears the onus of proof and the standard of proof is beyond reasonable doubt, it follows that, when considering the findings of fact before sentencing, any reasonable doubt should be resolved in favour of the offender.  That does not necessarily mean that what the offender asserts, either in a statement made under during his allocutus or in a record of interview, must be accepted.  It is noted that, unlike statements made by State witnesses, what is said during an allocutus and in answer to questions during a record of interview, is not said under an obligation to tell the truth. Findings of fact must be based on a consideration of all the evidence before the Court.

Findings of fact

14.	There is unchallenged evidence from the State witnesses that the offender and a co-offender each used a gun to shoot the accused, the offender shooting the victim in the thigh and the co-offender shooting him in the chest.  The suggestion of the offender was that the victim brought a gun and that there was a struggle during which the victim was shot in the left thigh.  

15.	Due to the State’s evidence not being challenged and the offender’s version never having been given at a time when he was obligated to tell the truth, his version of events is rejected and does not even create a reasonable doubt.  

16.	Accordingly, the Court makes the following findings of fact for the purposes of sentencing this offender:

(1)	By early September in 2022 there was a land dispute involving the victim.
(2) 	Early in the morning of Sunday 4 September 2022 the offender and a co-offender each shot the victim with a gun.
(3)	That involved a common purpose on the part of each offender.
(4)	The offender shot the victim in the left thigh.
(5)	The co-offender shot the victim in the chest.
(6)	The death of the victim was caused by those gunshots.

Consideration

17.	The medical evidence upon which the State sought to rely was rejected as (1) it did not include any evidence from a qualified doctor, (2) it did not reveal the qualifications and/or experience of the authors – a health extension officer and two nursing officers, (3) the first of those three pages purported to give evidence of what occurred at the time the victim was shot, (4) the second suggested the author witnessed the killing, and (5) the third referred to conclusions based upon an examination that were said to be in an annexed report that was not annexed.

18.	It is clear this case involved (1) a pre-planned attack, (2) a vicious attack, (3) a strong desire to inflict grievous bodily harm on the victim, (4) a dangerous weapon, namely a gun, was used, and (5) the victim was shot by two people, acting together.  Accordingly, this case is considered to fall within the third of the four categories outlined in Kovi.  Indeed, this case could be said to fall within category four in that it was a pre-meditated attack, involving a brutal killing, in cold blood.

19.	Noting that the range suggested in Kovi for category three was said to be applicable for a trial or a plea, the appropriate range is imprisonment for between 20 and 30 years.  If this matter had gone to trial, the upper half of that range would have been appropriate, even if the charge had been murder and not wilful murder.

20.	Apart from the importance of protecting life, the prevalence of the offence, the need for deterrence, and the use of a gun, it is noted that this incident involved two men against one, with each of them carrying a gun.  There was clearly a common purpose between those two men with the result that s 8 of the CCA operates to render this offender liable not only for the consequences of his conduct but also for the consequences of the conduct of his co-offender.

21.	The suggestion of the offender that he wished to arrange further compensation is not relevant to sentencing because (1) the Court cannot speculate as to what compensation might be paid in future, there being no indication of what further compensation was proposed, and (2) compensation cannot be used to “buy” a lesser sentence.  

22.	In addition to providing guidance as to sentencing those who face a charge of murder, Kovi considered the question of what role compensation should play in relation to sentencing.  The position may be summarised in four propositions:

(1)	Compensation is not an alternative to the application of the criminal law.
(2)	Local customs may make compensation relevant for sentencing purposes.
(3)	The form and amount of compensation must be considered.

23.	There was an admission of sorts during the record of interview, but its weight is less because the offender sought to downplay his role and even suggested, during his allocutus, that the offender shot himself.  There was no early plea as the offender was committed for trial on 5 February 2024 and did not indicate a plea of guilty until the outset of his trial, and as late as a pre-trial review statement dated 28 July 2025 it was said the offender’s response to the charge was a defence of “general denial”.
 
24.	Having regard to (1) the circumstances of the offence, (2) the circumstances of the offender, (3) the late plea, (4) the belated expressions of remorse, only when the offender was about to be sentenced, (5) the offence involving the killing of a relative, and (6) the payment of compensation (assuming what the offender said on that topic during his allocutus was accurate) the Court considers the sentence for this offender cannot be reduced below the lower limit of the range set out in Kovi for a murder conviction that falls within category 3.

25.	Clearly, this offender would not now find himself facing a lengthy term of imprisonment if (1) he did not have access to a gun, and (2) the land dispute said to underlie this offence had been resolved by court proceedings and not by a gun.

Sentence

26.	For those reasons, the Court considers that imprisonment for hard labour for 20 years should be imposed.  Deducting the period which the offender has spent in custody of 2 years and 8 months gives a period remaining to be served of 17 years and 4 months.

Sentenced accordingly.

Lawyer for the State: Public Prosecutor	
Lawyer for the defendant: Public Solicitor