N11524
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 105 OF 2024

THE STATE

v

KIAP YAKA
(NO 2)

WABAG: ELLIS J
14 OCTOBER 2025

CRIMINAL LAW – WILFUL MURDER - s. 299(1) CCA – Sentence following trial – Offender shot victim in the chest with a gun – Accomplice shot the victim in the thigh – Use of guns becoming common – Prevalent offence – Allowance made for payment of compensation – 30 years IHL.

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

Held	
Sentence following verdict
Kovi, category 3
Compensation paid
30 years IHL
Period on remand deducted
Balance to be served

Cases cited
Golu v The State [1979] PNGLR 653 
Kovi v The State [2005] PGSC 789
Lawrence v The State [1994] PNGLR 38

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

SENTENCE

1.	ELLIS J: 	Kiap Yaka, of Kanomanda village in Kompiam in Enga Province, was charged with wilful murder, based on section 299(1) of the Criminal Code Act 1974 (CCA), a charge which carries a maximum penalty of life imprisonment.

2.	Section 299(1) provides as follows:

“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”.

Allocutus

3.	After the verdict was delivered and a conviction was recorded, the offender was provided with an opportunity to address the Court.  What he said may be summarised as follows:

(1)	He is 47 years old, with eight children from two wives.
(2)	He asked the Court to have mercy and impose a lower sentence.
(3)	He complained about the conditions in the correctional facility at Baisu.
(4)	He wished to serve his sentence in Buiebi as he has family members nearby.

Evidence

4.	The evidence that was placed before the Court during the trial resulted in the following findings of fact:  

(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 his accomplice each shot the victim with a gun.
(3)	That involved a common purpose on the part of the offender and accomplice.
(4)	The offender shot the victim in the chest.
(5)	The accomplice shot the victim in the left thigh.
(6)	The death of the victim was caused by those gunshots.

5.	No evidence was relied on by the offender in the sentence hearing.  

Defence submissions

6.	It was noted that the offender is aged 47, with two wives and eight children.  The offender was said to be the third born child and the only male who has had no education and is a subsistence farmer.  He was said to be a member of the SDA church.  When the question of the offender’s request to serve his sentence in a location other than Baisu was raised by the Court, the offender’s lawyer said he had spoken to the offender and that request was withdrawn.

7.	While it was conceded that a life was lost, that an innocent person was killed, and that this offence was prevalent, it was contended that the was not the worst kind of case for this offence.  The Court was reminded that the offender had given evidence that he had participated in the payment of compensation.  It was submitted that, by reference to what was said in Kovi v The State [2005] PSC 789 (Kovi), the sentencing range was imprisonment for between 20 and 30 years. A sentence of 25 years was suggested, and the Court was informed that the offender had already spent 2 years and 8 months in custody.

Prosecution submissions

8.	For the State, it was noted that the circumstances of the offence had already been considered and determined by the trial.  Aggravating factors were said to be (1) the loss of a human life, (2) shooting with guns being on the rise, (3) the victim being shot twice, with two men each carrying a gun, (4) premeditation, (5) killing an innocent and unarmed victim, and (6) a complete disregard for human life.

9.	It was contended that this case fell within what Kovi described as category 3 for which the suggested penalty was life imprisonment.  A submission was made that a specific term of imprisonment should be imposed.  It was noted that this offender was being sentenced on a charge of wilful murder, following a trial, while the accomplice who was sentenced earlier today, was sentenced based a plea of guilty to the lesser charge or murder.  The suggested range for sentencing in this case was said to be from imprisonment for 25 years to life imprisonment.

Relevant law

10.	In Kovi, the Supreme Court specified sentencing ranges for wilful murder:

Category 1					15-20 years

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

Category 2					20-30 years

Trial or plea					Pre-planned.  Vicious attack.
Mitigating factors with			Weapons used.
Aggravating factors.			Strong desire to kill.

Category 3					Life imprisonment

Trial or plea					Pre-planned. Vicious attack.
Special aggravating factors.		Strong desire to do kill.
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					Death

Worst case - Trial or plea			Pre-meditated attack.
Special aggravating factors.		Brutal killing, in cold blood.
Killing of innocent, harmless person.
Killing in the course of committing another serious offence.
Complete disregard for human life.

Consideration

11.	It is well-established that the maximum penalty should only be imposed in the worst case (Golu v The State [1979] PNGLR 653) and that each case should be determined based on its own facts (Lawrence v The State [1994] PNGLR 38).

12.	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.

13.	The submission made on behalf of the offender was that the range for sentencing purposes was imprisonment for 20 to 30 years but, by reference to what was said in Kovi, that is the range for a murder charge falling within category 3 or a wilful murder charge falling within category 2.  In Kovi, for wilful murder, the suggested sentencing range was imprisonment for between 20 and 30 years for category 2 and life imprisonment for category 3.

14.	Apart from the usual considerations of the importance of protecting life, the prevalence of the offence, and the need for deterrence, it is noted that this offence involved the use of guns, which is becoming more common.  Indeed, this incident involved two men, each of them carrying a gun, attacking an unarmed man.

15.	Amendments to the Probation Act have the effect that a person who is sentenced to imprisonment for life is not eligible for parole.  That change in the law has two consequences.  First, a person sentenced to life imprisonment will not be released from custody which carries the implication that the offender will never learn a lesson and will never be reformed.  Secondly, such a sentence removes the prospect of any reduction in sentence for good behaviour and correctional facilities will be harder to manage if there are a substantial number of inmates who have no incentive to behave while they are in custody.  For those reasons, the Court considers that a sentence expressed in a period of years, rather than imprisonment for life, should be imposed.

16.	The only mitigating factor in this case is the payment of compensation, a topic that was considered in Kovi. What was said in that case on that topic may be summarised as follows:
(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.

17.	Having regard to (1) the circumstances of the offence, (2) the circumstances of the offender, and (3) the payment of compensation, the Court does not consider a sentence below the upper end of the range for wilful murder offences falling within category 2 of Kovi can be imposed.  

18.	There is a need for deterrence due to the increasing use of guns.  That guns appear to be readily available is a cause for concern.  The fact that guns appear to be readily available must have the consequence that offenders cannot expect leniency when they acquire and use a gun to commit a criminal offence, especially the offence of wilful murder.

19.	As was noted when sentencing the offender’s accomplice, 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.

20.	This sentence, when compared to that of this offender’s accomplice, clearly reveals the difference in sentence that can result when an accused person pleads guilty to a charge of murder instead of contesting a charge of wilful murder by raising a false alibi defence.

Sentence

21.	For those reasons, the Court considers that imprisonment for hard labour for 30 years should be imposed.  Deducting the period the offender has spent in custody of 2 years and 8 months gives a period to be served of 27 years and 4 months.

Sentenced accordingly.

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