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State v Gini [2003] PGNC 36; N2485 (12 December 2003)

N2485

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1527 OF 2000

THE STATE

V.

AVANA GINI
Prisoner

Waigani: JALINA, J.
2003: 8, 12 December

CRIMINAL LAW – murder – murder committed in course of robbery – deceased passenger in vehicle – deceased died from wounds inflicted by pellets from single shot fired from gun after vehicle failed to stop – sentence to be imposed – Criminal code s. 300(1).

Cases cited:
The State -v- Laura (No. 2) [1988-89] PNGLR 98
Simbe -v- The State [1994] PNGLR 38
The State -v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997
The State -v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998,
Jeffrey Harold Malepo v- The State, an Unreported Supreme Court Judgment dated 13th December 2000
Sap James Kumbapen -v- The State, (SCRA 14 of 2001), an Unreported Supreme Court Judgment dated 26th April 2001
The State -v- Kore Ase, an Unreported National Court Judgment N2220 and dated 22nd June 2001

Counsel:
G. Tabie for the State
L. Korie for the Prisoner

12 December, 2003

JALINA, J: This prisoner was a member of a gang that lay in ambush near Kwikila No. 2 Bridge between Kwikila Station and Saroakeina Village to rob passing vehicles and their passengers. On 7th July 2000, the day of the incident, the deceased was a passenger in one of four vehicles that travelled towards the direction of Marshall Lagoon. The vehicle the deceased was in was a Mitsubishi Canter PMV.

As this vehicle was crossing Kwikila No. 2 Bridge the prisoner and members of his gang rushed out of the bushes armed with dangerous weapons including a factory-made shotgun, bush knives, an axe and a toy pistol. They tried to stop the vehicle but when it failed to stop, one of his colleagues who was armed with the shotgun, fired a shot towards the back of the truck injuring the deceased and others. The deceased died instantly from bullet wounds to his head, chest and lungs.

This prisoner was charged with wilful murder under s. 299(1) of the Criminal Code Act Ch. 262 by operation of s. 7(1) (c) of the Act to which he pleaded not guilty. A short trial was then conducted during which the post mortem report, his record of interview and the statement of the investigator together with that of the corroborator were tendered into evidence by consent of Defence Counsel. The record of interview revealed that he was present with the others at the scene but did not intend to kill anyone or injure anyone but to rob. He also did not fire the shot. It was Johnson Eru who had fired the shot towards the back of the vehicle. The State then closed its case which was followed by Defence Counsel making a submission that the prisoner did not have a case to answer for wilful murder as there was no intention to cause death. Mr Tabie for the State has submitted that I should infer "intention" in the circumstances and the nature of the injuries sustained by the deceased. I ruled in favour of the prisoner and found that he did not have a case to answer for wilful murder but had a case to answer for murder as I could not be satisfied that there was intention to cause death.

When the court resumed after lunch, Defence Counsel informed the court that the prisoner (then the accused) wished to plead guilty to murder so after confirming it with the prisoner I recorded a plea of guilty to murder as he had already been arraigned for wilful murder and the change of plea was not as a consequence of amendment of the indictment by the State but by reason of ruling by the court whereby it found the accused had a case to answer for murder. The case then followed the normal procedure on a plea of guilty through the State Prosecutor tendering the rest of the depositions and the court reading them.

I am now to determine the sentence I should impose for murder committed in the course of another serious offence namely armed robbery. The maximum sentence for murder is life imprisonment pursuant to s. 300(1) of the Criminal Code Act subject to the court’s discretion to impose a lesser sentence under s. 19 of the Act. No doubt in view of the discretionary powers of the court when determining sentence, late Kidu CJ in The State -v- Laura (No. 2) [1988-89] PNGLR 98 set out sentencing guidelines which Mr. Korie for the prisoner has referred to. In sentencing the prisoner to 8 years imprisonment after conviction following a trial where the deceased died from a single stab wound, His Honour set the following guidelines for murder:

(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;
(b) a sentence of less than six years may be imposed only where there are special mitigating factors such as the youthfulness or very advanced age of the accused;
(c) on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

I was also referred to Simbe -v- The State [1994] PNGLR 38 where a sentence of 14 years I had imposed for murder was confirmed by the Supreme Court. In that case the prisoner cut the deceased’s rib cage open with a bushknife when he saw his wife being enticed by the deceased with a view to having sex with her. In dismissing the appellant’s appeal against sentence, the Supreme Court said that since the maximum penalty for murder was life imprisonment and considering the circumstance of the attack and manner the attack was carried out, it was no accident as asserted by the appellant. The court went on to say that each case must be decided on its own facts in determining sentence.

It is submitted by Mr. Korie that in view of sentencing guidelines for murder set by late Kidu CJ in the State -v- Laura (No. 2) as well as the mitigating factors such as the prisoner’s plea of guilty, his young age, his expression of remorse and his lack of prior convictions but bearing in mind that the murder in this case was committed in the course of a robbery, that a sentence of around 12 years be imposed.

Mr. Tabie on the other hand submits on behalf of the State that in accordance with the Supreme Court’s view in Simbe -v- The State that this case should be considered on its own facts. In doing so, he submits, that a sentence of 13 years which is similar to this prisoner’s co-accused John Eru, the person who fired the shot, be imposed.

Sentences for murder have increased to more than 12 years since Laura (No. 2) was decided more than 14 years ago in 1989.

For instance, in The State -v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997 Batari, AJ. (as he then was) sentenced the prisoners to 25 years imprisonment for the murder of brothers Ephraim Makis and Albert Uming inside their residential area in Port Moresby. Ephraim Makis was shot at point blank range and Albert Uming was stabbed in the back several times.

In The State -v- Haihavu Kori Kaiks, an Unreported National Court Judgment dated 21st April 1998, Los, J. imposed 23 years imprisonment on the prisoner who scaled the walls to the 4th floor of the Lodge Apartment, Hunter Street in Port Moresby and stabbed a geologist to death in the presence of his wife inside their apartment. In imposing the sentence the trial judge stressed that the offence was committed after invasion of the deceased’s private home or dwelling which was in effect done in breach of the deceased’s right to privacy of his home which was guaranteed under the Constitution.

In Jeffrey Harold Malepo -v- The State, an Unreported Supreme Court Judgment dated 13th December 2000, the Supreme Court dismissed the appellant’s appeal against a sentence of life imprisonment for murder. In that case the deceased was killed when she was tangled in the seatbelt of her vehicle and was dragged along the bitumen road for three kilometres after her vehicle was taken from her by the prisoner and his colleagues at Hohola in Port Moresby.

Her body was badly mutilated. In dismissing the appeal against sentence of life imprisonment, the Supreme Court accepted that the murder in those circumstances was among the "worst type murder" case.

In Sap James Kumbapen -v- The State, (SCRA 14 of 2001), an Unreported Supreme Court Judgment dated 26th April 2001, the Supreme Court dismissed an appeal against both conviction and sentence of life imprisonment for murder where the appellant chopped the deceased with a bushknife after gaining entry into the residence where the deceased was staying that night with his brother after falsely pretending that he was being chased by some people from 4 mile near Kainantu in the Eastern Highlands Province.

In The State -v- Kore Ase, an Unreported National Court Judgment N2220 and dated 22nd June 2001, I sentenced the prisoner to 15 years imprisonment for murdering the deceased by chopping him on the head, neck and other parts of his body with a bushknife.

The above cases clearly demonstrate the seriousness with which both the National and Supreme Courts view the crime of murder.

Whilst cases such as The State -v- Peter Plesman & Paul Moaina, The State -v- Haihavu Kori Kaiks, and Jeffrey Harold Melepo -v- The State have not been expressly stated to be cases involving murders committed in the course of a robbery, they nevertheless appear to reveal the aggravating factor that they were committed in the prosecution of unlawful purposes. So from the length of sentences demonstrated in the above murder cases, this case, with the aggravating factor that the murder was committed with a lethal weapon during a robbery, should attract a sentence of between 15 and 25 years. I am however constrained by the sentence of 15 years that was imposed by Gavara-Nanu J, on this prisoner’s co-accused Johnson Eru for wilful murder. That is clear from the warrant of commitment which has been tendered by Mr. Tabie for the State. I am constrained because the principle of parity of sentence prevents me from imposing a sentence beyond 15 years even though Mr. Tabie for the State has urged me to do so. Furthermore, murder being less serious than wilful murder, the sentence I impose on this prisoner must not only as a matter of law but also in all fairness to him be less than the sentence for wilful murder.

In considering the penalty I should impose, I have taken into account the provisions of the Criminal Law (Compensation) Act 1991 and am of the view that compensation is not an appropriate penalty for the crime of murder. In fact, in my view, compensation should not be the penalty for any offence of homicide where weapons are used or where human life is lost through some deliberate act of another person except in wholly exceptional circumstances.

I have taken into account in deciding the penalty I should impose his statement on the allocatus which included his expression of remorse. I have also taken into account his personal antecedents and the submissions made by his lawyer in mitigation of sentence.

The sentence I consider appropriate in all the circumstances of this case is a period of imprisonment in hard labour for 13 years. Since he is serving sentence of 6 years for robbery, no deduction is made for period in custody. To the extent that the murder was committed in close proximity as to time and circumstances to the offence of robbery, I order that his sentence for robbery be served concurrently with his sentence for murder which I have just imposed. The 1 year suspension from the sentence of robbery is rendered ineffective by the higher sentence for murder. The effect of this is that he will have to serve 13 years. Any remissions that he has earned when serving sentence for robbery would now be applied to the 13 years for murder.
_______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor