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State v Sumai [2018] PGNC 504; N7622 (21 November 2018)

N7622

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1196, 1197, 1198,1199,1200,1201 OF 2014

THE STATE

-v-

PATRICK SUMAI, BULU SUMAI, AUPIN SUMAI, JUSTIN YAKI WANJERI, RUBEN IMUS, JOSEPH JARANGU KWABEGI
(N0. 2)

Wewak: Geita J
2018: 12, 15, 21 November

CRIMINAL LAW – Sentence after trial – The accused and his brothers chased, apprehended the victim who was mentally retarded and beat him to death - Wilful Murder s. 299 (1) Criminal Code Act.

CRIMINAL LAW – Sentence – Apportioned with degree of involvement and participation. – 40 years low to high 45 years less pre- trial custody periods- Probation and part suspension of sentence not considered appropriate.

Background:

This brief facts gives an insight into why the long delay in bringing this case to a close? Soon after their conviction’s, submissions from both counsel were slow coming. Defence Counsel was hospitalised at one stage. On their part the Public Prosecutor also contributed to this lengthy delay. All those challenges now overcomed with this sentence and closure.

Cases Cited:

Gimble v The State [1988-89] PNGLR 271
John Elipa Kalabus vThe State [1988] PNGLR 193
Richard Dangiwan, Pius Black Giligawi and George Giligawi CR 764 – 757 of 2015- 12 November 2018 (Unreported)
State v Hemis Yau No.2 [2016] N6273
State v Genesis Simba No. 2 [2015] N6015
State v Jack Binde No. 2 [2015] N6146.
State v Kanapio, Kinin , Pasokio,Lipilaas and Nowar [2005] N2800
State v Kingsford Kari & 1 Other [2015] N6017
State v Obert Hulaware No.2 [2015] N6144
State v Taulaola Pakai [2010] N4125
State v Tom Keroi Gurua & 3 others, [2002] N2312

Counsel:

Paul Tusais, for the State
John Allman, for the Prisoners

JUDGMENT ON SENTENCE

21 November, 2018
1. GEITA J: The six of you have been found guilty of the wilful murder of Christopher Hombimori on 12 May 2014 at Yamiyanda village in Wewak. The offence comes under Section 299 (1) of the Criminal Code and attracts a maximum death sentence. Prisoner Ruben Imus escaped from Boram CIS custody whilst awaiting sentence. This sentence also includes him in absentia.

2. The facts as found by the Court on your conviction following your trial on 8^th August 2017 are briefly set out as follows: On 12 May 2014 at Yamiyanda village in Wewak the six of you chased the victim, apprehended him as he got to his house and assaulted him because he burnt down Joseph Kwabegil’s house. You were all armed with bush knives, axes, spears and fishing guns as you chased after him. The victim was cut on several parts of his body as he attempted to take refuge at his house. He was however dragged out of his hamlet by Joseph Kwabegi and hit on his head with a wheel burrow handle causing him to bleed profusely. The rest of you also attacked the victim as he lay helpless on the ground and pleaded for mercy. During the entire hot pursuit and eventual attack on the victim none of you attempted to stop or discourage your friends from further attacks. The victim succumbed to the injuries he received on his head and body and died during the attack. The head injuries were graphically described by his wife as “waswas long blut –bagarap nogut true”

3. No prior convictions were recorded against the six of you.

4. The anticipated extenuating circumstances presented to the Court for its consideration were defence pleas for this Court to consider the root cause of this crime and reflect this fact in the offenders’ mitigation.

5. Mitigating factors include all of you with no prior convictions, first time offenders, some with medical conditions.

6. Aggravating factors include the attack being horrific, cruel and merciless in spite of the victim’s pleas for mercy. There was a strong desire to kill the victim, you were all armed with offensive weapons and used those weapons on the victim, the victim was old and known to be mentally retarded, the victim was unarmed and defenceless, None of you showed genuine contrition or remorse.

7. Upon administering the allocutus on 12 November 2018 pursuant to section 593 of the Criminal Code, the accused said as follows:

8. The thrust of defence submissions on sentence for a part custodial and part suspended sentence was based primarily on the strength of the case of Thress Kumbamong v State [2008] PGSC 51 ; SC 1017. This is a well known case in which the accused following appeal had her 9 year sentence for manslaughter reduced; hence a departure from the sentencing tariffs in Manu Kovi v The State (2005) SC 789 as regards Courts discretion in sentencing. Counsel of prisoners John Alman submitted that all prisoners were first time offenders and unlikely to reoffend if allowed back into the community and were remorseful.

9. Defence Counsel argued that had the victim being restrained in hospital due to his mental incapacity; the three houses would not have been burnt down by him which resulted in his death. Mr Alman further submitted that since the crime was not pre meditated and not planned some element of provocation in the non-legal sense existed thus mitigating the crime for the prisoners.

10. Mr Alman further urged this Court to exercise its discretion to impose sentences pursuant to Section 19 of the Criminal Code. Counsel submitted that the court refrain from following the primary sentencing principles in the case of Manu Kovi (supra) as it did in the case of The State vs Genesis Simba No. 2 CR 339, N6015. In what Defence Counsel termed as exceptional special mitigating factors: the burning down of the three houses and other property, which resulted in the prisoners resorting to killing the victim. He submitted these to be special circumstances and urged the court to impose a non custodial sentence for the prisoners save for the main instigator: (Thress Kumbamong v The State (2008) SC 1017.

11. The Public Prosecutor in submission advanced that this case should fall within the third most serious category in that the attack was vicious resulting in the death of a mentally retarded old man. Mr Tusais urged that a term of imprisonment between 30 years and 40 years be considered in light of the fact that all the prisoners intention to kill the victim clearly manifested. Despite Joseph Kwabegi who played the lead role Mr Tusais submitted that they all be given the same sentence. He referred the Court as referred to the often quoted case of Manu Kovi v The State in which this profound statement was made:

“The sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost. The unlawful taking of another person’s life is a serious and horrendous crime which must be adequately punished. The courts have re-interated this basic and fundamental principle in many cases.”

12. The following cases were referred to the Court by The Public Prosecutor to assist this court in arriving at an appropriate sentence in this case. They are tabulated here for ease of reference and point of reference by year sentences made:

13. Mr Tusais also referred the Court to an earlier case I deliberated and made the following comments: State v Hemis Yau N6273 in 2016. This was a wilful murder case in which the accused and his family members brutally murdered the deceased. In sentencing this accused to 40 years I said:

“In light of the escalating trend of homicide cases in this province courts have been imposing longer prison terms these last few years however I cannot in all honesty say that this has deterred perpetrators from committing such heinous crimes”

14. I acknowledge that the case of Manu Kovi (supra) is the lead authority in homicide cases with recommended tariffs on the type of sentences to be imposed however this time around I have opted to adopt the Thress Kumbamong principle (supra) in this case, instead. Since my judicial discretionary sentencing powers are still intact I will instead exercise those powers in this case. I am not satisfied that a non custodial sentence on probation is appropriate in this type of murder and will refrain from exercising my discretionary powers available to me under Section 19 of the Criminal Code Act.

15. I take note of your collective concerns for your family members and your pleas for leniency and to be considered for probation and non custodial sentence but Courts have said time and time again that persons who commit crimes must not escape due punishment for their wrongs. Such persons must be made responsible for the wrongs they have committed against the State and its citizens. “ A plea for leniency to avoid the suffering of one’s family should have little or no weight when an appropriate sentence is being considered.” (State v Taulaola Pakai (2010) N4125, Hartshorne J.)

16. As regards consideration on punishments, the principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges. In the case of John Elipa Kalabus –v- The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

“There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes”.
17. For the moment your aggravating factors far outweigh your mitigating factors warranting a deterrence sentence in my view to send a very strong message to others from committing such similar crimes. With the greatest of respect I do not agree with Defence submissions that you all should be let out on non custodial sentences. Furthermore and lest it be thought that it has escaped my attention, I must say here that it is not altogether correct to think that this case be equated with Thress Kumbamong case as submitted by Defence Counsel. There are marked differences between the two cases. In Thress Kumbamong, she was charged with manslaughter whereas in this case, the offenders were charged with wilful murder. The sentiments and circumstances surrounding Thress Kumbamong were quasi domestic related killing involving two persons, whereas in this case the six of you were involved against one mentally retarded man. Whilst I take judicial notice of the root cause of this crime and the need to appreciate the circumstances which surrounds it, those factors alone remain insignificant in view of the murder committed on a known mentally retarded person. Common decency and regard for a fellow human being was overtaken by the prisoner’s quest to avenge and avenge they did. The Court must consider what ought to be the most appropriate sentence befitting the crime before it. Gauging from the list of homicide case which have come before this Court, long term custodial sentences have been imposed. A drastic deviation in sentence as recommended by Defence Counsel from that trend would be a travesty, in my view. It follows that a deterrent sentence is considered appropriate in your case.

18. I take judicial notice of the cases referred to me by Prosecution however I feel I need not look further than the most recent sentence I delivered during this circuit. The attributes and facts appear near analogues to the one now before me. It was a mob or gang attack, hot pursuit, all armed with offensive weapons and a desire to kill the victim and kill they did in the most brutal fashion. Two deaths resulted from that crime. The main instigator was sentenced to 45 years and his brothers who played lesser roles sentenced to 40 years and all sentences made cumulative. I will adopt and apply the sentencing range I used in the Richard Dangiwan case: (Richard Dangiwan, Pius Black Giligawi and George Giligawi CR 764 – 757 of 2015- 12 November 2018 Unreported) for the reasons stated above.

Degree of criminal responsibility?

19. The Supreme Court case of Gimble v The State [1988-89] PNGLA 271 held that the general rule when sentencing all active participants in the crime is that they be sentenced on the same basis. All are equally guilty because without each playing his full part the crime could not be perpetrated. However in the case of The State v Tom Keroi Gurua & 3 others, [2002] N2312 the court departed from what now appears to be the general rule in sentencing co offenders stated in Gimble v The State. The Tom Keroi Gurua (supra) case talks about each prisoner to be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances. (Per Kirriwom J).

20. In view of the prisoners varying degrees of involvement in this crime I have opted to follow and apply the Tom Keroi Gurua approach ahead of the Gimble approach, that is the prisoners must each be punished according to the degree of his criminal behaviour, culpability and personal circumstances.( The State v Kanapio, Kining , Pasokio,Lipilaas and Nowar [2005] N2800).

Assessment on degree of participation:

21. In order to get an appreciation of the role each of the prisoner’s played in the commission of this murder and apportion near certain degree of relativity, I looked at some attributes which I term were common and others which were done were done individually. The common attributes include: They were all on hot pursuit of the victim to his home; They were all armed with either spears, bush knives or some weapon of sorts; This was a mob attack; They all took part at jeering and hurling abusive words at the victim as he lay wounded. Some attributes which I consider local to the prisoners include: One of them clubbed the victim on his head with the handle of a wheel burrow; One prisoner cut the victim’s fingers; Another tied the victims hands to his back; Another called out to the victim that he would finish him off; Another took an active part and stood out as the leader of the pack and inflicted many blows. From this simple process I am able to work out the degrees of each of their participation individually or collectively and apportion their sentences accordingly.

22. Due to the foregoing reasons coupled with the exercise of my discretion, I have come to the conclusion that an appropriate sentence to be imposed upon the six of you would be based on the principle of deterrence.

Sentence

23. The Court makes the following orders. Any pre-trail custody periods to be deducted accordingly. Probation and or part suspended sentence considered inappropriate under the circumstances.

Court Orders

_______________________________________________________________
Public Prosecutor: Lawyer for the State
John Allman Lawyers: Lawyer for the Prisoners