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State v Mond [2016] PGNC 284; N6483 (4 September 2016)

N6483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 538,541 & 542 OF 2013


THE STATE


V


ANTON MOND, JOSEPH GEMBA AND PETER KEPMA


Kundiawa: Liosi, AJ
2016: 13th July & 4th September


CRIMINAL LAW – Sentence – Murder –Guilty plea – Sentencing guidelines in Manu Kovi discussed and followed – Courts sentencing discretion under s.19 unfettered – Extenuating circumstances and mitigating factors distinguished –Killing committed by deceased own blood relatives and witnessed by deceased 13 year old daughter are considered as further matters of aggravation –


Cases cited:
See Antap Yalu -v- The State Unreported Supreme Court Judgment
Avia Aihi -v- The State (No.3) [1982] PNGLR 92
Baipu -v- State (2005) SC796
Enn -v- State (2004) SC738
Goli Golu -v- The State (1979) PNGLR 653
Jack Tanga -v- The State (1999) SC602
Manu Kovi -v- The State (2005) SC789
Simon Kama -v- The State [2004] SC740
State -v- Daniel (No 2) (2005) N2890
State -v- John Kapil Tapi (2000) SC635
State -v- Kesino Apo (1988) PNGLR 182
State -v- Ketu (No:2) (2007) N3394
State -v- Laura (No.2) (1988-89) PNGLR 98
Thress Kumbamong -v- The State (2008) SC1017


Counsel:

Mr. J Kesan, for the State
Mr. M Yawip, for the Prisoner

JUDGMENT ON SENTENCE


4th September, 2016.


  1. LIOSI, AJ: On 13th July 2016, the 3 prisoners pleaded guilty to 1 count of murder of one William Dua at Womatne Village, Gembogl District, Simbu Province contrary to section 300(1) (b) of the Criminal Code.

Brief Facts

  1. The following are the brief facts upon which the 3 prisoners were arraigned and to which they pleaded guilty. It is alleged that on the 27th of November 2012, the 3 prisoners armed themselves with bushknives, went to the deceased house and confronted and attacked him inflicting grievous wounds to all parts of his body. The deceased subsequently died from the injuries he sustained. Their actions contravened section 299 of the Criminal Code Act.

Personal background


  1. The prisoners are from Wotmane Village, Gembogl District, Simbu Province. Anton Mond is a villager, 44 years old and member of Catholic faith. He is married with 3 children who are now adults. Joseph Gemba is 29 years old, a member of the Catholic faith and is single. He is a villager and resident at Wotmane. Peter Kepma is a villager. He is also a member of the Catholic faith and is married with 3 children.

Antecedents


  1. The 3 prisoners have no prior convictions.

On Allocatus the 3 Prisoners said the following


Anton Mond

He was sorry to the Court, God, and the community and to his brother who they killed. The deceased is his real brother. He smoked drugs and it affected his brain. He was unfit to live with them as he always threatened them with bushknives. He even killed his own wife and threw her body into Wara Simbu. They searched for the wife and found her body the next day. He reported him to the police. They then paid compensation of K10,000.00 and 11 pigs to the wife’s relatives. On a drug charge he was sentenced to 1 year and was serving that sentence when he escaped. After he escaped, they were all living in fear. He did not say thank you to them for working hard to pay compensation for his deceased wife. Instead he accused them of using sorcery to kill his wife and continuously threatened them. They did not have freedom to move around freely or even go to the garden. In the end they decided to cut his leg to minimise his threats. He is sorry that he is dead. He said they surrendered to Police. Whilst they were in custody their families paid K4, 000.00 cash and 5 pigs to the deceased family. He has been in custody for 4 years.


Peter Kepma

He said sorry to God, the Court, mother and father of the deceased and the community. He said Anton Mond has already spoken on his behalf. His lawyer will also speak on his behalf.


Joseph Gemba

He said, thank you for giving him the time to talk. He says sorry to God the Court and the community leaders. He said his big brother Anton Mond has already spoken on his behalf and therefore he does not wish to say anything.


Defence Submission


  1. Mr. Yawip of Counsel submits that on allocatus, the co-offenders have expressed remorse. They killed him because he was threatening family members. That they only intended to do grievous bodily harm only. That at that point in time he was an escapee from Barawagi Correctional Institution Services. He was on remand after been charged for the murder of his wife. Whilst on remand, he was convicted of drug offences and was sentenced to 1 year. He was serving the sentence when he escaped and got murdered.

The Law

  1. Section 300(1)(a) of the Criminal Code provides for the offence of murder. It states:

“Subject to the succeeding provisions of this Code, a person who kills another person under the following circumstances is guilty of murder:-
(a) If the offender intended to do Grievous Body Harm to the person killed or to some other person: or

Penalty; Subject to Section 19, imprisonment for life.


  1. The maximum penalty is life imprisonment. It is trite law that maximum penalty is always reserved for the worst cases. Avia Aihi v. The State (No.3) [1982] PNGLR 92, Goli Golu v The State (1979) PNGLR 653.
    1. Section 19 of the Criminal Code provides various sentencing options available to the Court. He submits the facts and peculiar circumstances of this case shows, it is not a worst. The following mitigating factors demonstrate this.

Mitigating factors


  1. The prisoners and the deceased are all relatives. He submits the deceased was an escapee after he was charged with the murder of his wife. Whilst in custody, the co-offenders contributed K10, 000.00 and 11 pigs as compensation to the deceased wife’s relatives.
    1. He escaped thereafter and returned to the village and started threatening the villagers including the 3 prisoners. He destroyed properties and wounded Joseph Gemba’s mother who is Peter Kepma’s wife. He never appreciated the compensation payments they made on his behalf. The villagers were tired of his behaviour. He submits the prisoner brought his own demise.
    2. The prisoners have pleaded guilty saving time and resources. They each have no prior convictions and are first time offenders. They have also paid compensation to the deceased relatives although they are family.
    3. He further submitted that the pain is self inflicting as they killed their own family member. State v. Kesino Apo (1988) PNGLR 182. The Supreme Court herein held that the traditional self primitive aspect relating to the killing of a relative are matters which may be taken into account on sentencing. However, there is no hard and fast rule that it should greatly reduce the sentence.
  2. He submits that in the Supreme Court case of Manu Kovi SC 789, the Supreme Court found inconsistencies in range of sentence in homicide cases. It therefore developed a set of guidelines in an attempt to bring consistency. The Courts have since been relying on the guidelines.
    1. Applying the guidelines in the Manu Kovi case he submits that the case falls between categories 2 and 3 of Manu Kovi.
    2. Category 2 is as follows. Trial or plea – mitigating factors with aggravating factors no strong intent to do Grievous Body Harm – weapons used – some preplanning – some elements of viciousness – sentence of 16 – 20 years.
    3. Category 3 – pre-planned vicious attack, strong desire to do grievous body harm – dangerous or offensive weapons used – other offences of violence committed – Sentence of 20–30 years.
    4. He submits the appropriate penalty should be between 16–20 years. However, the Court is not strictly bound by the guidelines as each case must be decided on its own merits. He submits a term of 10–16 years would be appropriate.

State Submission


  1. Mr. Kesan of Counsel submits the following. On 27th November 2012 at about 4 pm, the 3 prisoners were at home in Womatne Village Gembogl District, Simbu. The deceased William Dua was also there. He is one of their own brothers and a family member.
  2. A couple of days earlier the deceased was released from custody where he was been held over allegations of murdering his wife. He blamed his own family members including the 3 prisoners for the death of his wife and started arguing and assaulting family members. The 3 prisoners became concerned about the behaviour of the deceased since been released from custody. On the day of the killing they were to have a Court case over an incident where the deceased assaulted a female member of the family and cut their dog.
  3. The Court case did not proceed that day. Instead the 3 prisoners armed with bush knives and bow and arrows surrounded the deceased, chopped him and shot him with arrows and killed him. They caused the death by means of an act done in the prosecution of an unlawful purpose (assault). Such unlawful assault was of such a nature to endanger human life.
  4. The State further alleges all co-offenders are liable under Section 7 and 8 of the Criminal Code in that they assisted each other to achieve a common purpose to attack the deceased and caused his death.

What is the appropriate Sentence?


  1. The State submits that the 3 prisoners ought to be sentenced on the above set of facts.
  2. The following are the aggravating factors.
    1. The nature of the attack on the deceased. The medical report and the photographs indicate a very serious kind of murder which brings this murder into the worst case scenario to attract the maximum penalty.
    2. This was a group attack on the deceased person who was unarmed and defenceless at that time.
    3. A life was lost and can’t be replaced by whatever punishment the Court imposed on the prisoners.
    4. This type of murder committed by persons using bush knives on other persons is a prevalent offence and that the Court has a duty to impose deterrent sentence to protect the community and to deter people from committing similar crimes.
  3. The sentencing principles set out in the cases of Goli Golu v The State (1979) PNGLR 633 and Avia Aihi v The State (supra) are relevant, maximum sentences are always reserved for the worst murder cases.
    1. The Case of Manu Kovi v The State (supra) categorised the different kinds of homicide cases and laid down sentencing tariffs of wilful murder, murder and manslaughter cases (refer to paragraph 16 & 17).
  4. In this case the prisoners armed with bush knives and bows and arrows, chopped the deceased many times all over the body. During the attack they also shot him with an arrow on the neck. The medical report and photographs showed the deceased died a painful and horrific death special features of which are:

He submits those elements fulfil the requirements of category 3 of Manu Kovi (supra) which attracted a prison term of between 20–30 years.


  1. By way of comparison he refers me to various category 3 murder cases using bushknives to demonstrate the current sentencing trend.
  2. He submits that in line with similar “bushknife cases” cited above, sentencing range within the vicinity of 25 years would be appropriate.

Sentencing Trend


  1. Murder is the second most serious of homicide offences thereby attracting the maximum penalty of life imprisonment subject to Section 19 of the Criminal Code. Courts have lately introduced guidelines in an effort to bring consistency in sentencing in homicide cases.
  2. This started with the case of State v Laura (No.2) (1988-89) PNGLR 98. Tariffs were then reviewed again in many subsequent cases by the Supreme Court involving murder and manslaughter cases in the domestic settings. See Antap Yalu v. The State Unreported Supreme Court Judgment, Jack Tanga v The State (1999) SC 602, and the State v John Kapil Tapi (2000) SC 635. Courts seem to have distinguished and become lenient in sentencing on unintentional killings in domestic settings as opposed to those in non domestic settings.
  3. In Simon Kama v The State [2004] SC740 the Supreme Court finally reviewed and adjusted the sentencing tariffs for murder. The Court also reviewed the guidelines set out in the State v Laura (supra) and Lawrence Simbe v The State (supra)
  4. All this tariffs were again reviewed by the Supreme Court in Manu Kovi v The State (supra). The decision made a comprehensive review of the existing tariffs for wilful murder, murder and manslaughter cases.
    1. This guidelines were also discussed in Thress Kumbamong v The State (2008) SC1017. It particularly stressed the need for the Courts to be careful and not to fetter it’s sentencing discretion by confining itself to strict guidelines set out in Manu Kovi (supra)

Decision


  1. To arrive at an appropriate sentence for the prisoners, I consider the mitigating and aggravating factors for and against them and the circumstances of the killing.
  2. The following are the mitigating factors:
  3. I also find there were extenuating circumstances. I accept evidence from Mr. Yawip that the deceased escaped from custody whilst awaiting his case relating to the murder of his wife. The affidavit filed by Mr. Yawip confirms that, whilst the accused was in custody, the 3 prisoners with their relatives arranged and paid compensation in the amount of K10, 000.00 and 11 pigs as compensation to the deceased wife’s relatives. He never appreciated this when he escaped from custody. Instead, he destroyed properties and wounded Joseph Gemba’s mother who is Peter Kepma’s wife. He terrorised the community who were tired of his behaviour. The deceased therefore brought his own demise. I find this to amount to extenuating circumstances within which the killing occurred.
  4. The following are aggravating factors against the prisoners.
  5. What would be the appropriate sentence given the circumstances of the killing. Does this case fall under the worst case category thereby attracting the maximum penalty. Maximum penalty for this offence is life imprisonment which is normally reserved for the worst murder cases. Goli Golu v. The State and Avia Aihi v. The State (supra).
    1. I have considered the cases cited by Mr. Kesan. I have also considered other following decided cases:
      • The State v. Mapa Lom (2012) N4725
        The prisoner found his wife having sexual intercourse with another man. He chopped her instantly with a bushknife on her head, arm and leg. Both the left arm and the right ankle were completely severed off and her skull was split open exposing the brain tissues. Gauli AJ sentenced the prisoner to 18 years imprisonment in hard labour. There was no preplanning and the attack was spontaneous.
      • Simon Kama v. The State SC740
        This was an appeal to the Supreme Court against a sentence of 25 years on a guilty plea to a charge of murder. The offence was committed in conducting a planned armed robbery with the use of 3 firearms on the highway. The deceased driving a vehicle slowed down to stop and the appellant shot him on the head killing him instantly. The appeal was dismissed and the National Court sentence was confirmed.
    2. I will apply the sentencing guidelines for murder as set out in Manu Kovi’s case. This was a vicious mob attack with dangerous weapons with no regard for human life. In deciding which category of Manu Kovi this case falls under. I note that the Court’s discretion still remains unfettered. Thress Kumbamong -v- The State (supra)
  6. I accept the mitigating factors and the aggravating factors as submitted by both the Defence and the State. The weapons used here were dangerous namely bushknives and bows and arrows. The attack was a mob attack on an unarmed and defenceless deceased. This was a brutal killing in cold blood with a complete disregard for human life. It is clear the aggravating factors far outweigh the mitigating factors. It is even more unthinkable that the person they killed was their own blood brother watching him die a painful death.
  7. Mr. Yawip of counsel for defence submits that given the circumstances of the killing and applying the guidelines in Manu Kovi’s case the case falls between categories 2 and 3. Category 2 attracts a range of 16-20 years. Category 3 attracts a range of 20-30 years. He submits the appropriate penalty should be between 16-20 years. However, the Court is not strictly bound by the guidelines and submits a term of 10-16 years would be appropriate.
  8. Mr. Kesan for the State submits this case falls into category 3 of Manu Kovi’s case. He backs his argument with a number of bushknife associated killing cases. I entirely agree with the State. I do not agree with Defence submissions that this case falls between category 2 and 3. Nor do I agree that a penalty range of 10-16 years is appropriate.
  9. I find that this case falls within category 3 of Manu Kovi’s case. I find the circumstances of this case to be similar or even more serious than the cases referred to. The assault included the use of bushknives and bow and arrows, there was preplanning involved and there was a strong desire to do grievous bodily harm. The deceased died a gruesome and a painful death in front of his own 13 year old daughter. The offenders were his two blood brothers and a nephew. In my view this are further aggravating circumstances making the crime more serious.
  10. Given the circumstances of this case, the prevalence of bushknife killings and the need for deterrence, I view this case falls at the higher end of category 3 of Manu Kovi’s case. I sentence each of the 3 prisoners to 27 years imprisonment in hard labour. I deduct Pre-sentence custody period of 4 years. The prisoners will therefore effectively serve 23 years.
    1. I will issue a warrant of commitment forthwith.

Sentenced accordingly,


_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Offenders


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