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State v Elisha, Robin et al [1991] PGLawRp 524; [1993] PNGLR 16 (26 July 1991)

PNG Law Reports 1993

[1993] PNGLR 16 - State v Elisha, Robin et al�

[1993] PNGLR 16

U8

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

WARANGUL ELISHA, GEORGE TURABAN ROBIN, KEPAS URAVA MARAVA, JACK KAPEO ELISHA, ROBIN TOLOLO WURA, AND EREMIA MANU

Rabaul

Ellis J

26 July 1991

SENTENCING - Wilful murder - Accuseds were involved in assaulting and knifing to death of deceased - Identity of person(s) who inflicted fatal wounds unknown - Common purpose, s 8 Criminal Code.

Facts

This case is reported on the issue of sentencing. The facts are contained in the judgment on sentence.

Counsel

N Miviri, for the State.

K Latu, for the accused.

26 July 1991

ELLIS J: Each of these six accused is charged with wilful murder arising out of the death of Bani Bonat on 4 November 1990 at Pilapila. Each of them pleaded not guilty in a keenly contested trial, and convictions were recorded this afternoon.

It is necessary before sentencing to at least briefly indicate what occurred and how this victim was murdered. I have set out that in some detail in my judgment which, when typed, will run to some 55 pages for the simple reason that each of these six accuseds raised an alibi defence, and many of them called witnesses. A consideration of each of those alibi defences revealed them to be blatantly untrue. The conviction in each case is supported by recognition evidence from eye witnesses and by various additional conduct on the part of each accused.

The fourth accused threatened the deceased on 25 December 1989, some ten months prior to the murder. Additionally, after the deceased was assaulted and stabbed but before his body was placed on the roadway, the fourth accused knocked on the louvres of the deceased's house in an effort to awaken his wife and make her go to the roadway and think that the death of her husband was caused by a car accident.

The fifth accused made an admission to a State witness.

The sixth accused made a premature comment before the body was discovered. Simply put, before anyone knew that it was the deceased wife crying and before anyone knew it was the deceased's body on the road, the sixth accused was commenting to others about who had died and who was crying.

Shortly after the fifth accused made an admission of involvement in this murder, saying, "We killed him" to a State witness, the second accused threatened him suggesting both the second accused's involvement in this offence and his complicity with the fifth accused.

The events of this night are largely established by the unchallenged evidence of Robert Diga. He was not required for cross-examination. Those events cover the period up to when the deceased accompanied Robert Diga home. Thereafter, the evidence is established by eye witnesses.

Robert Diga and the deceased, having spent the day in Rabaul on Saturday 3 November 1990, were driven back to Pilapila by the deceased's brother. They arrived at about 10.30 pm. Shortly after arriving at ToEmil's store, they met a group of people which included the second, fourth and sixth accuseds. The combined group went to Arnold Mack's store and obtained a carton of SP bottle beer on the deceased's credit. The group then went to a beach area on Talili Bay. Whilst drinking there they were joined by the third accused. Another group was drinking nearby. The drinking session lasted from about 11.30 pm until about 1.45 am. Having finished the beer, the group walked back to the main road and arrived at ToEmil's store. The sixth accused, Tiku ToMavatoi, Robert Diga, and the deceased left the others and walked toward Robert Diga's house. Prior to arriving at Robert Diga's home, the sixth accused and Tiku ToMavatoi left them.

After the deceased left Robert Diga, he was returning toward his house at about 2 to 2.30 am when he was called out to by the second and fifth accuseds. The second accused suggested further drinking. The group at that time included all six accuseds. The deceased initially expressed the desire to sleep but was persuaded to join them. This conversation between the group and the deceased was observed and heard by Henry Todokoi, who left the scene following a threat. That threat arose when his presence, but not his identity, was detected. This prompted the second accused to say, "Who is that man who is not saying good night to us? We'll see later on the tarmac". Correctly interpreting this as a threat, Henry Todokoi proceeded to his grandson's house, only to find him already asleep. He slept there for a short time and, upon awaking, proceeded to an area near old Bruno's trade store.

Sometime after the deceased joined the group near the mango tree where they were first observed by Henry Todokoi, the second, third, fourth, and sixth accuseds were observed by Warwakai Lydia to be carrying the deceased's body. She observed this from her doorway as they proceeded along the foot track near her house. The first accused told her that they were carrying the deceased home because he was drunk. It is clear from the direction being taken that they were not taking the deceased home but that they were taking him toward the roadway.

Subsequently, between 2.30 and 3 am, all six accuseds were observed standing adjacent to old Bruno's trade store close by the body of the deceased, which was on the ground at a location at which dried blood was afterwards observed together with two knives left behind at that scene in a banana tree. Shortly prior to the discovery of the deceased's body on the tarmac roadway of the North Coast Road, the fourth accused was observed by Warwakai Lydia to knock on the louvres of the deceased's house. Upon a car striking the deceased's body as it lay on the North Coast Road, a crowd, including the deceased's wife, gathered at the scene.

The postmortem clearly indicated that the accused was initially assaulted and afterwards three serious injuries were inflicted upon his body. Expressing them in every day language, the first injury was that his throat was cut in a wound which measured 18 cms x 1.5 cms. That is a wound some 7 inches long across his neck. Secondly, he was stabbed in the abdominal area with a wound some 3 to 4 cms long. Thirdly, a large area measuring 17 cms x 7 cms was peeled from his upper arm, exposing muscles, nerves and blood vessels as the full thickness of skin was removed from the arm. The body was subsequently placed on the roadway in a futile attempt to make it look like a car accident. This was plainly not a car accident. It clearly was a murder, and it was a planned murder: a planned murder which involved the initial assault, carrying the deceased to another location where he was brutally stabbed, his throat was cut, skin was peeled from his arm, and he died, almost certainly, when he choked on his own blood and vomited. His body was then placed on the roadway in the hope that those involved would avoid detection and conviction for their criminal conduct.

After announcing the convictions, the Court adjourned to enable the accuseds to speak with their lawyer in order to ensure that nothing they wished to have the Court consider on the question of sentence would be omitted.

When provided with an opportunity to address the Court prior to sentence, Warangul Elisha, the first accused, endeavoured initially to protest his innocence and then subsequently indicated that he had nothing to say on the question of penalty.

The second accused, George Turaban Robin, said, "I feel sorry for Bani's death". He also suggested that he didn't know anything about the murder of the deceased and, when told that he was being asked to address the Court on the question of penalty only, he said, "I don't have anything to say".

The third accused, Kepas Urava Marava, said, "I feel sorry for Bani's death. He is my brother".

The fourth accused, Jack Kapeo Elisha said "I feel sorry for Bani".

The fifth accused, Robin Tololo Wura, said, "I say sorry for Bani's death".

The sixth accused, Eremia Mamu, "I feel sorry for Bani. He is my brother. Whatever decision the court gives, I will just accept it. And God will be with us".

To the extent that the accuseds expressed sorrow at the death of the victim, that clearly did not constitute remorse since it was not accompanied by any admission of involvement in the murder.

On behalf of these six accuseds, Mr Latu has made submissions. I note that he was told the matters relevant to sentence when the Court adjourned after announcing the convictions, prior to allocutus.

On behalf of the first accused, Warangul Elisha, Mr Latu indicated that the offender is 30 years of age, married with three children and that he supports his family by means of subsistence farming. It appears that he has no prior convictions and has spent six months in custody prior to today.

The second accused, George Turaban Robin, is 22 years of age and single with no prior convictions. He too has apparently spent six months in custody prior to today.

Kepas Urava Marava is married with two children ages 6 and 3. His age is not accurately known. He has been supporting his family as a subsistence farmer. He has no prior convictions and has also spent six months in custody prior to today.

Jack Kapeo Elisha, the fourth accused, is aged 20, married with one child. He has spent six months in custody prior to today and has no prior convictions.

Eremia Mamu, the sixth accused, is 29 years of age, is married with two children ages 2 and 1. He has a Grade 8 education. He has no prior convictions and has spent six months in custody prior to today.

On behalf of these six accuseds, Mr Latu submitted that the appropriate penalty is ten years imprisonment. A consideration of cases involving wilful murder in 1989 and 1990 decided in the National Court of Papua New Guinea following a trial suggests that ten years might be a sentence for a plea, but only in exceptional circumstances would a sentence of ten years arise following a trial. On the contrary, in 1989 there was a case similar to this in which a victim was killed and the murder was made to look like a car accident. The sentence in that case was 20 years imprisonment with hard labour.

The maximum penalty for this crime, under s 299 of the Criminal Code is imprisonment for life. Section 19 of the Criminal Code entitles the court to impose a lesser sentence if it considers that to be appropriate in the circumstances. If the evidence in this case had established the identity of the person who inflicted the fatal wound, then a life sentence would be the only sensible alternative for a murder as brutal and callous as this, aggravated as it is by an attempt to avoid detection, first, by depositing the body of the deceased on the roadway and, secondly, by raising an obviously false alibi in this court.

The evidence as it stands merely shows that these six were involved in the assault and subsequent knifing of the deceased. Section 8 of the Criminal Code has the effect of rendering each of them liable for those acts as if they did it themselves, because they are each deemed by that section to have committed the offence of wilful murder.

Despite being given the opportunity to show remorse for their conduct and to indicate their individual roles in this gruesome murder, none of the accuseds took advantage of that opportunity, with the result that the Court has no sensible alternative but to impose the same sentence in each case.

REMARKS TO THE ACCUSEDS ON SENTENCE

This is a murder so serious and so callous that it has rarely ever been seen in Rabaul before. The man was assaulted to the point where he lost consciousness. He was carried to another location. By that time he had a tear injury on his spleen, a broken jaw, lost teeth and numerous bruises. But that was not enough. His throat was slit, he was stabbed in the body and the full thickness of skin was peeled from his arm. As if that wasn't enough, in an attempt to avoid detection, his body was put on the roadway and his wife was awakened in the hope that everyone would be fooled and think this was a car accident.

You six men tried to go walking around Pilapila village as if nothing happened. Fortunately, witnesses saw you, they came forward and gave statements to the police and, following a trial, you have been convicted. You have not escaped punishment, and the people of Pilapila village who are friends, relatives and wantoks of the deceased are to be complimented that they have not tried any paybacks but have awaited the decision of this court.

I sentence each of you six men to 20 years imprisonment with hard labour. From that I deduct six months in respect of time already spent in custody. That leaves a sentence of 19 years 6 months remaining to be served starting from today. The submission of your lawyer that you should be sentenced to ten years imprisonment is clearly too low for a case of this nature. Ten years' imprisonment is far too lenient for six people who decided to murder a man, then carried out that murder in a brutal fashion. You will have plenty of time in which to learn your lesson. Also, other people who hear of this case who might think of committing a murder will think twice about doing it.

None of you has provided me with any details of your personal circumstances. Your lawyer has only given me limited details. It would appear to me that you are in a similar situation to many who are sentenced by the National Court: you probably have aged parents, perhaps already deceased; you most likely work on copra and/or cocoa blocks and you are no doubt wondering who will look after those blocks and your families while you are in gaol. These are the same kind of things which are of concern to the family of the man you murdered: who will look after them?

Your family and personal circumstances have not been overlooked by me when deciding upon your sentence: those considerations are outweighed by the savage nature of this crime.

What makes this case even worse is that some of you are related to this man, yet that didn't stop you from becoming involved in a plan to murder him.

The reason for your murdering this man is not completely clear from the evidence, but it would appear that the fourth accused, Jack Kapeo Elisha, fought with the deceased on 25 December 1989, some ten months prior to the murder, which occurred on 4 November 1990. Following the fight, the fourth accused, Jack Kapeo Elisha, said to the deceased, "Wherever you go, I will kill you". Part of the ten months delay is explained by the fact that the fourth accused was in Lae from April to September of 1990. But the evidence and documents in this case show that this was not a passing threat but something which you left hanging over his head for a number of months. The evidence shows that immediately after this threat, the deceased was so scared that he went and slept near the road or on the road. That is, perhaps, why you tried to make his death look like a car accident. You thought that, because in the past he had been sleeping on the roadway, by putting his body on the roadway, people will think that he was run over by a car whilst he was asleep. You thought that people would say, "Oh, that's because Bani Bonat has been sleeping on the road again". This case will not teach Bani Bonat and others not to sleep on the roadway: it will teach you and others like you not commit this crime of wilful murder.

I note that you were quite free in issuing threats. You didn't just threaten the deceased, you threatened an eye witness, Henry Todokoi, and you threatened another man after one of you had admitted to him being involved in this trouble. Those men who were threatened will now know that you are going somewhere where your threats will no longer be effective, and they will sleep safer because of that.

You have the right to appeal from this decision as to your conviction and sentence. Any such appeal should be lodged within 40 days of today. However, I should warn you that the Supreme Court has the power to increase your sentence. Indeed, the State Prosecutor may well decide, if you appeal, to appeal against your sentence and ask the Supreme Court to alter my sentence from 20 years goal to life imprisonment. In addition, the State Prosecutor will clearly have to give some thought as to whether you and your alibi witnesses should be charged with perjury.

Your sentences remaining to be served, namely 19 years and 6 months, will commence from today.

Lawyer for the State: Public Procecutor.

Lawyer for the accuseds: Latu & Lawyers.