N11757

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR No. 264 & 265 OF 2023

  THE STATE

V

MIRO KOARI & KOARI MIRO

KEREMA: MIVIRI J
10 DECEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – intent to kill – Deceased Cut with Bush knife All Over hands  – Right & Left Hand Cut Severing – Death – Attacked in the Dwelling House – Two Men Armed with Two Bush Knives Against Unarmed Man – Retaliation Over Earlier Assault – Determined Persistent Attack – Protection of the Home – First  Offenders – Prevalent Offence – Drunk Self Induced – No Excuse to Defy Law – Strong Deterrent Punitive Sentence – Right to Life Sacred – Life Imprisonment x2.

Facts 

Prisoners were father and son who earlier attacked the brother of the deceased. Deceased reacted and drew the accused to come armed with bush knives to his house cut him on both his hands causing massive bleeding leading to his death. They intended to kill him and killed him. And aided abetted in intending to kill and killing him.

Held

Serious Home invasion.
Very Serious Attack with bush knives.
Unarmed man in his own house.
Surrendering to the Prisoners.
Both hands cut off.
Cut on the head brain and skull.
First Offenders father & Son jointly attacking deceased.
Sacred and Sanctified Right to Life.
Drunk Self Induced No Excuse to breach Law.
Strong Punitive Deterrent Sentence.
Life Imprisonment x2.

Cases cited 
Aihi v The State (No 3) [1982] PNGLR 92 
Simbe v The State [1994] PNGLR 38 
Kumbamong v State [2008] PGSC 51; SC1017 
State v Hagei [2005] PGNC 60; N2913 
Manu Kovi v The State [2005] PGSC 34; SC789 
Kwapena v The State [1978] PNGLR 4; [1978] PNGLR 316 
Ume v The State [2006] PGSC 9; SC836 
Paege and Tanda, The State v [1994] PNGLR 65
Ivoro, Regina v [1971-72] PNGLR 374
State v Mesuno [2012] PGNC 80; N4701 
Sanawi v The State [2010] PGSC 31 ; SC1076 
State v Pius Kulu [2018] PGNC 435; N7542 
Golu v The State [1979] PNGLR 653
State v Harisu [2006] PGNC 137; N3168 
State v Bakamini [2021] PGNC 275; N8983 
Oakare v State [2001] PGSC 21; SC1010
Enn v The State [2004] PGSC 36; SC738 
State v Mohavila [2006] PGNC 106; N3385 
State v Poroli [2004] PGNC 113; N2655
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Amoko, The State v [1981] PNGLR 373 
Wani v The State [1979] PNGLR 593
Nimagi v The State [2004] PGSC 31; SC741
Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948
Michael v The State [2004] PGSC 37; SC737 
Tardrew Public Prosecutor v [1986] PNGLR 91

Counsel

D. Mark, for the State
S. Kafafi for the defendant

SENTENCE
1.	MIVIRI J:  Miro Koari is the father of Koari Miro, both now appear to be sentenced for the conviction of jointly committing wilful murder of Paul Avu on the 1st of January 2022 at night between 7.00pm and 8.00pm at Kapiri village, Kerema, Gulf Province.

2.	There is nothing out of the ordinary outstanding to weigh out against other than to proceed as I do now. I have heard the submissions for and against to determine an appropriate and proportionate sentence due the prisoners. The maximum sentence due for the crime of wilful murder under section 299 is life imprisonment. This is the maximum penalty by law. It is not automatic but dependent on the facts and circumstances of each case. Usually, the maximum penalty is reserved for the worst case. What is a worst case is a question of the facts and circumstances. No one case is the same, each would draw its own sentence by its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). And judicial discretion is not tied down as each case will draw penalty relative to its facts and circumstances, Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994). No one case of wilful murder, or homicide is the same as the other, each has peculiar facts circumstances that will eventually lead out into a proportionate penalty due, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
 
3.	Prisoners attacked in a group and went determined undeterred to the house of the deceased. It was the culmination of earlier attack on another brother Tony Perou of the deceased. He was also seriously wounded. This is laid out clean by the sketch plan exhibit P5 (8). When the offence is repeated and compounded escalated into a scene as here it is not a light matter. Defiance readily of the rule of law has no place in a civilized society. It would be erroneous not to impose penalty conversant with that fact. People who do not resort to the process of law are a danger to society. They must be shown that acting in concert as here, election self-appointed Judge Jury Executioner has no place in Kerema, Kapiri or anywhere at all. Noone is the law unto themselves and can never be. For the prisoners their boundary in unlawfulness determined defiance of the rule of law did not include extending at nighttime and into the house of the deceased. He did not become immune from the protection of the law because they each were armed with the one meter tramontina bush knives that they pursued him with into his own house.

4.	When a community leader, a company chairman, a peace officer becomes a menace to society compounded with the recruitment of others and his own son, flesh and blood to pursue to cut up a fellow human being in his own house, in full view of his relatives and wife, because one is under influence of alcohol, it is not a licence, a mandate to terminate the life of another human being. Section 35 right to life of the Constitution, is Thou shall not kill reiterated bold in section 299 of the Criminal Code. This country is a Christian Country and has stood by that now 50 years into its independence. It is time to show that any determined persisted breach will meet with the full force of the law. Kerema Kapiri Gulf Province is still part of Papua New Guinea and not immune from the tentacles of the law and the rule of law. This is not to say the prisoners must be made examples, but whatever sentence is due is by the aggregate of their facts and circumstances. It is the ultimate balance in weighing that will determine. It is the sum of the aggravating as well as the mitigating and any extenuating circumstance.

5.	I do not find any extenuating circumstance apparent and identifiable here State v Hagei [2005] PGNC 60; N2913 (21 September 2005). life imprisonment was imposed because, prisoner was taken to the relatives of the deceased, a young girl who was raped and then killed by the prisoner who hit her to the back of the head with a log. She suffered internal injuries and died. The relatives speared the prisoner with a spear to the chest. He died and was taken covered with a plastic to be put into the buka morgue when he became alive. He was for that reason sentenced to life instead because there were extenuating circumstances that imposed other than the death penalty. The Crime of Wilful Murder has not subsided because of the stiff penalties that are imposed by this court time and again reinforced by the Supreme Court on Appeal for instance in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that has gone to set this facts and circumstances set out here as category 4 has not deterred would be offenders. Prisoners were determined to and had the premeditated intention to kill the deceased. It is the reason for their actions. They were not content with attacking his brother Tony Perou. Nor where they content with Prisoner Miro Koari hitting him with a piece of timber on the head. They followed up with bush knives to his house. He had raised his hands in surrender. He was unarmed. It did not deter them that they were watched by witnesses and villagers in that village. All this evidence has not swayed out of the goodness of their heart to owe up. A trial ensured to come to this verdict. Should the prisoners be accorded any favour. If so on what basis. I find none except that they are first offenders. And that is about all in their favour. I do not find convincing the reason of age for the son for the reasons I will enlighten in this judgment.

6.	It is a very brutal killing set out clean by the photographs that were taken by his wife at the hospital in Kerema where he lay dead. No one should be carved up on their hands like a tree carved to serve life. His hands both were cut up in the words of the wife like banana stump. He is cut all over as if he was a banana tree harvested for food. Both father and son acted in concert in rhythm one with the other. The father led and the son followed in unison compounding that house into one of horror that night for the wife. She witnessed her love in life unceremoniously sent to the grave. He stood no chance of survival when he was taken out across the sea here to Kerema General Hospital. He merely came to take his place until burial at the Kerema Morgue. How traumatic is that for the wife and relatives. If that was not enough the Prisoners with another came that night to the hospital themselves to see. They bowed their heads in shame for what they had done to him. Should they have freedom to take the life of another as here. Is the Constitution of Papua New Guinea alive or dead after 50 years of Independence.

7.	Was he poised with a dangerous weapon Kwapena v The State [1978] PNGLR 4; [1978] PNGLR 316 (1 September 1978). He had nothing in his hands of a weapon that would hurt nor cause harm to the life limb of the prisoners. He had simply surrendered with his hands both raised. To the Prisoners they became easy targets to be cut up like the leaves and stump of a banana tree harvested for food. No one should be treated in this way in their house witnessed by their family. Prisoners here would fit similar where Death penalty was substituted for life imprisonment in the case of payback killing in Ume v The State [2006] PGSC 9; SC836 (19 May 2006). This is continued string of violence undeterred in that area Kapiri on that night at the hands of the prisoners. Where the level of violence exceeds as here the Court has a duty to protect lives and property. It is not wrong to impose the maximum due in law. Death penalty was envisaged but life imprisonment was imposed in Paege and Tanda, The State v [1994] PGNC 124; [1994] PNGLR 65 (24 June 1994) where it was an ambush in a tribal conflict. Yet in another case Ivoro, Regina v [1971] PGSC 23; [1971-72] PNGLR 374 (30 November 1971) death penalty was imposed upon the prisoner for stabbing to death a woman. He had earlier on shot the companion of the woman with a .22rifle and then stabbed him. He also shot another person earlier on with that rifle. Violence exceeding accepted standards and decency in a civilized society must meet the will of the legislature without exception. I find no exception to deviate here for that fact.

8.	I am not faced with a sorcery related killing as in State v Mesuno [2012] PGNC 80; N4701 (8 June 2012). There are no good reasons to deviate from what is due to the prisoner by his own facts and circumstances, Sanawi v The State [2010] PGSC 31; SC1076 (29 September 2010). In the State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018) prisoner laid in ambush and shot the deceased with a gun through the heart killing him. He was convicted of wilful murder and sentenced to life years because the deceased and his group were coming to the area of the deceased. It would have been a different sentence if it was the prisoner who sought out and killed the deceased. Here Prisoners set in motion a level of violence that tormented that community and village on that night 1st of January 2022. This was the first day of that new year and deceased was the trophy of that pinnacle of violence in the hands of the father and the son. It was an attack uncalled for. When the means to set in motion to kill a person is worked out in detail so that nothing is left to chance, it must befit that the prisoner be sentenced leaving no return because, “Wilful Murder has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why in most jurisdictions it carries a fixed penalty – sometimes death but infrequently life imprisonment” Golu v The State [1979] PNGLR 653. Would it fit that the maximum due under law be considered here.

9.	Prisoners are not challenged or provoked to fight as in State v Harisu [2006] PGNC 137; N3168 (24 October 2006) where 22 year was imposed for guilty plea to murder. I am dealing with wilful murder and a trial. Nor am I dealing with a situation as in State v Bakamini [2021] PGNC 275; N8983 (26 July 2021), they are not retaliating after lapsing off time over a scar to one of their bodies. This is a deliberate attack executed in the night culminating to travel to the home of the deceased pursuing him over feud that has brewed to the climax in his killing. There is no diminished responsibility here. Even if I consider the personal antecedents of both father and son, there is nothing within deviating what is due to them in law dictated by the facts and circumstances. Education and experience in life have not deterred both from this heinous heedless crime. This is not a case of voices telling the prisoners to do what they did, Oakare v State [2001] PGSC 21; SC1010 (9 December 2001). In this regard I do not think and hold voluntary consumption of alcohol has basis to sway otherwise than what is due in law to them.

10.	Here is a deliberate attack adding to violence that was executed moments earlier on the deceased. He was tailed to his house at nighttime 7.00pm to 8.00pm. To my mind this is not a case likened to Enn v The State [2004] PGSC 36; SC738 (1 April 2004), where there was a fight between the appellant and the deceased stopped, and the appellant reignited and chopped off the neck of the deceased. He pleaded guilty and was sentenced to 20 years IHL for murder. This is wilful murder and a trial. That is less serious than the present scene. It is not similar to State v Mohavila [2006] PGNC 106; N3385 (25 October 2006), where during an argument over sorcery prisoner cut the deceased on his left hand. He retaliated and cut the prisoner on his left side of his head then retreated behind another and dropped the knife. Prisoner picked up the knife and cut deceased on the forehead twice from which he died. Life imprisonment was imposed for murder. That is murder this is wilful murder up from that. It is the most serious homicide offence. Its treatment is different comparably. 

11.	And that would be justified because life has become cheap there is no hesitation to inflict as did the prisoners here. I do not find any evidence, mitigating nor extenuating except the steep incline of the aggravating features which leave their allocutus and they are being first offenders next to nothing. It will not have any impact on the sentence due them. The aggravating features are so overwhelming that it leaves no option other than to go down a very determined and punitive sentence that must uproot they out of society’s grasp into where they will not return to torment as they did here. Extermination of the life of a fellow human being contradicts section 35 of the Constitution, the right to life. We are Christian and commandment number 6 of the Ten Commandments of God says, thou shall not kill and the bible Romans verse 6 lines 23 says for the wages of sin is death. And the sentence would be fitting of the crime if it were an eye for an eye, a tooth for a tooth. Therefore, it is right that the prisoners be accorded their just dues in law by their own facts and circumstances. By their own conduct they have written their own sentence.

12.	Sentences that have been passed in wilful murders or homicide offences have been done so on the basis of the description and the evidence that have been held out to draw the sentence flowing. For example, in State v Poroli [2004] PGNC 113; N2655 (25 August 2004), the deceased was a policeman who was led up a small hill by a Pastor who left him to the hands of the prisoner and others. Deceased requested to have a few moments in prayer. As soon as he said amen and opened his eyes, the prisoner opened fired with a single shot from a homemade gun that went through his head and the brain killing him instantly. Death Penalty was secured on the evidence that was presented before the case.

13.	I view the present case as a very bad case of wilful murder. Paul Avu the deceased was only 32 years old. He had a long way to go in his life. His wife originally from Madang came across to relive that night of the 1st January 2022. She will not have her husband return despite whatever sentence is meted out for the crime. He was killed brutally in his own home by the father and son who were armed with bush knives each that they used to cut him up all over his right and left hands. Not only content with the injuries on the hands the son cut him on his head fracturing his skull and injuring the brain from which he suffered and died. Both have arrogantly defied the rule and the long arm of the law to commit a very heinous crime in the home of the deceased. It was a very determined, persistent attack committed by the prisoners. They paid no heed that they were seen by all the witnesses who have been called to give evidence leading to their conviction. When the law is defied in this way, the court is duty bound to bring bold the rule of law. It is a very heedless and violent crime that has no place in a civilized society. It must be stamped out with very deterrent and punitive sentence. The prisoner’s determination to end his life, must be rewarded with sentence that heeds to the rule of law, no one can take the life of another in this way and get away with that fact, without answering in full to the long arm of the law.

14.	I say this because not long after between 7.00pm and 8.00pm, the Prisoners Miro Koari and Koari Miro followed Paul Avu to his house. Both were each armed with bush knives. They found him under the house and attacked him with the bush knives. Miro Koari slashed the deceased on his right shoulder and his left arm. His son Koari Miro joined in and used the bush knife that he was holding to slash the deceased on his right arm, biceps and the head. The deceased fell to the ground bleeding heavily from his wounds and both Prisoners left. The home must be protected from intruders’ persons who defy the law to commit very serious offences known to the law as here. The Courts have held man must feel safe secure and protected in their homes whether shanty or castle, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). This sentence will reflect that fact because no one should be treated in this way in their homes.

15.	I consider it very relevant to set out the injuries found by Doctor Cherobim Kapanombo medical practitioner employed by the Kerema General Hospital. He has worked for 14 years and performed the autopsy of late Paul Avu at the Gulf Provincial Mortuary on the 14th January 2022. Primarily he confirmed that the deceased had the following as abnormal on his body. He had Hypovolaemia due to Multiple bush knife wounds to the head. He concludes that the deceased died from loss of blood (hypovolaemia) compounded with traumatic brain injury resulting from multiple bush knife wounds sustained. And he has attached exhibit P3(a) Postmortem Report, dated 14th January 2022, exhibit P3(a) seals that there was 10cm long x 3 cm deep cut along the right of the frontal bone of the head. Skull fracture and brain was cut as well. Right upper limb 4 cuts on the lateral aspect of the shoulder/arm area. With the biggest of the cut measuring 10cm long x 7cm deep cut through the muscles and fracture to the humerus. The other 3 cuts were superficial measuring between 1cm deep and 4 to 7cm long. The left upper limb x2 cuts to the back of the forearm, 10cm long x 5cm deep just below the left elbow with fracture to the ulna and radius. And 7cm long x 5cm deep about 5 cm above the first cut. Left side of the back 15cm long x 5cm deep along the left lateral aspect of the shoulder deep down to the shoulder blade. He concluded that late Paul Avu died from loss of blood (hypovolaemia) compounded with traumatic brain injury resulting from multiple bush knife wounds sustained.

16.	This injuries evidence the determination of the prisoners and the intent to terminate the life of the deceased. I need not set out and repeat the photographs depicting out the gruesome details of the injuries inflicted. Suffice to say this is not a pig slaughtered to be eaten for the new years party. This is a human being who was treated no less than a human. And a trial where denial was maintained in the face of glaring evidence that saw otherwise. It is clear the scene paints that the deceased stood no chance of survival because he was sealed from any escape from the attack by his assailants. Anywhere where he tried to escape, he was sealed off because there is evidence of trace of blood there to depict where he set foot before his eventual demise. His attempts to climb from the stairs from the kitchen show that he was cut there. And here there is immediate solar lights setting the stage of the attack clear. It is a determined attack by his assailants. They it would appear left no room nor chance for his escape from their attack. This in my view is manifestation of the intention to kill the deceased. He was rounded off to the dictate of these assailants whether he lived to see another day or not.

17.	In so doing I am conscious and take due account that there is no break in the chain of the intent by reference of each as principal offenders within the definition of an accomplice in Amoko, The State v [1981] PGNC 58; [1981] PNGLR 373 (4 June 1981). It was explicit that both were aiders and abettors within Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979), because Miro Koari cut the deceased followed immediately in concert and unison by the son Koari Miro killing the deceased. Not only were they there but participated in the common intention to kill. And that they both in pursuit of that common intention killed the deceased pursuant. They were not innocent bystanders but were part of that common intention to kill the deceased and did kill him. One did not disassociate one from the other in it culminating eventually to the death of the deceased. As in Porewa Wani (supra) calling out “Alaia Alaia, kill him, kill him” Avia Aihi acting in accordance and stabbing and killing Morris Modeda. That is the classical situation here firmed out against both Father Miro Koari and son Koari Miro. By law settled by the evidence I set out above I find both guilty of intending to cause the death of Paul Avu. And did kill Paul Avu with the common intent. I find the father guilty of wilful murder. In the same I find the son guilty of wilful murder. And I return that verdict on the Indictment against both Miro Koari and Koari Miro of that crime committed on the 1st January 2022 when they intended to kill Paul Avu and did kill him. I hold given these that both prisoners will be treated equal to the role they each played in the demise of the deceased. One will not be treated differently one from the other. This is a very violent offence of wilful murder and therefore whether the son is 19 years old or 17 does not in my view matter because violent offences have been committed by persons in his age group. The Supreme Court rejected the plea of youthfulness and confirmed the sentence of 50 years for murder in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) where prevalence of violence outweighed. I will follow similar in the case of Koari Miro. What sentence is due the father will also fall on his crime.

18.	I consider that there is one law for all persons. There is no distinction between an old man and a young man who have taken the life of another as here. Age is one of the many factors weighed to come out in aggregate with a just proportionate sentence due the offender. What must be attained is that the sentence must fit the gravity of the crime committed, 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 considered by the sentencing Court at first instance. There is no evidence of de facto provocation to prompt what the prisoner did. “The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder, and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric.” Nimagi (supra).

19.	The Courts must not fail in their spirit to the Constitution and to the People and must deliver justice fair and square, because who else will serve the people justice. And the Supreme Court endorsed this in very broad terms saying, “Accordingly, we are of the view that in the light of the fact that more, and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increase level of violence such serious crimes as, wilful murder, murder, manslaughter, rape and armed robbery, Michael v The State [2004] PGSC 37; SC737 (1 April 2004).

20.	They displayed complete contempt for human life when they used the bush knife in the way evidenced. A man’s life lost in this way leaves no room for what has been set out in Tardrew Public Prosecutor v [1986] PNGLR 91 (2 April 1986). It would be erroneous to go down a path to suspend sentence in the light of the evidence. This is the pinnacle of all homicide offences. It is therefore for a purpose that the legislature has demarcated. I will heed that dictate I do not have the power to legislate but comply and heed.

21.	The sentence for the crime of wilful murder against both Father Miro Koari and son Koari Miro is life imprisonment for the wilful murder of Paul Avu committed on the 1st January 2022 at Kapiri.

Orders Accordingly,
__________________________________________________________________ Lawyer for the State:	Public Prosecutor 
Lawyer for the defendant: Public Solicitor