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State v Solo [2021] PGNC 367; N9178 (20 September 2021)

N9178

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 274 OF 2019

THE STATE

V

JUNIOR SOLO aka ALA

Lae: Kangwia J.

2021: 19^th August & 02^nd September

CRIMINAL LAW – Sentence - murder – convicted after trial - deceased killed in the process of committing armed robbery – premature termination of life in unprovoked act – sanctity of life - armed robbery intrusion into privacy of innocent people – prevalence of murder – disparity with lower sentence from co-accused rejected – prisoner’s culpability at par with co-accused who pulled the trigger - sentenced accordingly.

Cases Cited:
Gimble v State [1988-89] PNGLR 271
Goli Golu v State (1979) SC172
Joseph Nimigi v The State (2004) SC741
Manu Kovi v The State (2005) SC 789
State v Asabona & Ors (2020) N8494
State v Eddy Kava Laure (No. 2) N69)
State v Marai (2017) N6693
State v Vincent Simbago (2005) N2954
The State v Tom Keroi Guurua & Ors (2002) N2312
Ure Hane v State [1984] PNGLR 105

Counsels:
P. Matana, for the State
G. Peu, for the Prisoner

20^th September,2021

1. KANGWIA J: Junior Solo aka Ala is appearing as a prisoner for sentencing. He was convicted after a trial as a principal offender for murder pursuant to s 300 (b) (i) & (ii) and s 7 (1) (a), (b),(c), & s 8 (a) & (b) of the Criminal Code Act (CCA).
   

FACTS

2. The facts attached to the indictment stated that on Saturday 25 June 2016 the deceased, one Dr Alphonse Rongap was dropping off a friend at Ass Mambu bus stop in Lae.
   
3. The prisoner in the company of other youth attempted to hold him up by yelling at him to stop. The Doctor reacted and tried to leave. While the Doctor was trying to leave, one named as David Naia aka Flethet shot him at point blank range with a home-made pop gun. The Doctor died instantly.
   
4. A post-mortem report revealed that the Doctor died from depressed compound skull fracture due to shotgun pellet wounds to the forehead and found pellets embedded in the brain.
   
5. The prisoner is believed to be nearly 22 years old as he was 19 years at the time police charged him on 28 December 2018. He is educated to grade 5 and was formerly employed by the city council. He is single and has no prior convictions.
   

SUBMISSIONS

6. On his allocutus the prisoner said, “ I say sorry to the Court for causing a trial. I have been found guilty. I ask for leniency. I am a first-time offender. I ask for time to be served outside of Buimo CIS. I request Bihute CIS to be the place to serve the sentence the Court imposes”.
   
7. On his behalf Ms Peu submitted that the offence fell under category 3 of the guidelines in Manu Kovi v The State (2005) SC 789 which suggested a sentence range of 20 to 30 years. The prisoner was a first-time offender and co-operated with police. It was a one-off incident and was not armed. His upbringing was in a crime infested area and peer pressure was hard to avoid. He was poorly educated and faced much stigma due to publicity associated with the crime. His family had been displaced with home and property completely destroyed.
   
8. It was further submitted that his co-offenders David Naia and Katsu Mera were sentenced to 35 and 25 years respectively according to their culpability.
   
9. The prisoner played a lesser role where he was not armed and did not inflict any injury to the deceased and a disparity with a lower sentence was justified.
   
10. The Court was referred to two cases as supporting their submissions for a more lenient sentence.
    
11. In the case of the State v Marai (2017) N6693 the prisoner who pleaded guilty to shooting and cutting the deceased in an armed robbery along a track was sentenced to 20 years.
    
12. In the case of the State v Asabona & Ors (2020) N8494 where the prisoners were convicted of murder after a trial for robbing and killing the deceased by repeatedly stabbing him were sentenced according to their culpability. The main perpetrator was sentenced to 22 years and the other two were sentenced to 19 years for the lesser role they played.
    
13. It was finally submitted that the more than two years that he had been in pretrial custody should be deducted.
    
14. On behalf of the State Ms Patana after highlighting the general sentencing principles submitted that a sentence between 25 to 35 years imprisonment should be imposed as the aggravating factors in this case outweighed those in mitigation.
    
15. There was a premature termination of life. A dangerous weapon was used. There was no regard for human life. He acted in a group. Death was caused in the prosecution of an armed robbery which was an unlawful purpose. There was some deliberate intention to harm. He acted under the influence of alcohol. The prisoner was on the run for more than two years after the killing. The offences of robbery and murder are prevalent and on the rise.
    
16. The deceased in this case was a Medical Doctor. His death was a loss not only to his family but to the nation as a provider of an essential service in health. The prisoner and his accomplices displayed a carefree attitude towards the value of life and safety.
    
17. The Court was also referred to cases as relevant in sentencing for this offence.
    
18. In the case of the State v Donia (No 2) (2011) N4904 on a conviction after a trial for murder from the pursuit of an unlawful purpose was sentenced to 25 years.
    
19. In The State v Langu (No 2) (2004) N2652 the offender who was convicted for murder was sentenced to 25 years.
    

LAW

20. The crime of murder and its prescribed penalty is provided under s 300 of the CCA and the relevant parts are a follows:
    

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

Penalty: Subject to s 19 imprisonment for life.

21. The maximum penalty prescribed for murder is life imprisonment. The principle of law on sentencing is that the maximum prescribed penalty should be reserved for the worst category of each case. (See Goli Golu v State (1979) SC 172; Ure Hane v State (1984) PNGLR 105).
    
22. In the case of State v Eddy Kava Laure (No. 2) N69) the court in a wilful murder case said.
    

“Each case of wilful murder must be decided on a case by case basis, but always remembering that the sentence laid down by s.299 is death and the term of years is by virtue of s. 19.”

23. What the Court said in that case is also relevant for murder and is adopted accordingly in the present case.
    
24. The prisoner is facing a crime that carries a maximum prescribed penalty of life imprisonment. The maximum prescribed penalty can be imposed if a murder fell into the worst category despite the principle of law that the maximum should be reserved for the worst category of each offence. There is no fixed formula from which the worst category can be easily realised. It depends on the facts and circumstances of each case.
    
25. In the case of The State –v- Polin Pochalou Lopai [1988-89] PNGLR 48 His Honour, Bredmeyer, J. while discussing sentencing principles in a manslaughter case said:
    

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequence. . . with consequence the more serious the consequence, the greater the punishment.”

26. Courts are treating deaths in murder cases seriously. It is treated more seriously when a death is caused in the process of committing an unlawful act like armed robbery. Sentences are varied but the Courts have not shied away from imposing the maximum prescribed penalty for murder committed in the process of committing an unlawful act.
    
27. The following cases attest to it.
    

In the State v Vincent Simbago (2005) N2954 the prisoner in a company of other persons was involved in a string of armed robberies. In one of the robberies a group of people were held up and abducted.

In the process of transporting the abducted persons the driver lost control and the vehicle ended up in a ditch. One person died and 5 sustained injuries with one losing permanent eyesight. He was sentenced to life imprisonment while his co-accused was earlier sentenced to 30 years. The Court found that the offender owned the gun used in the robbery and murder and was deemed an active offender and not a passive offender.

In the State v Pendin Hahuahari (No 2) (2005) N2186 the prisoner who pleaded guilty to murdering the deceased in a failed armed robbery case in the company of others, was sentenced to life imprisonment.

In the case of Joseph Nimigi v The State (2004) SC 741 the Supreme Court refused an appeal against a sentence of 50 years imprisonment for murder out of a failed armed robbery case. The Court commented that the appellant should have been given life.

28. These cases reflect the serious consideration given by the Courts for deaths arising out of armed robbery as in the present case.
    
29. The cases referred to by counsels also affirm the serious consideration being given by the Courts in sentences for murder generally.
    

DECISION

30. This is a case that attracted the maximum sentence of life imprisonment for the offence of murder that the prisoner was indicted on. The case centred on an armed robbery that went terribly wrong. The consequence was the death of Dr Alphonse Rangap, a prominent Medical Doctor of this country.
31. The prisoner was in a group of youths who planned and proceeded to hold up vehicles and the late Doctor’s vehicle became the first. From the group, his co- offender named as David Naia aka Flethet shot the deceased at point blank range with a pop gun. The pop gun admittedly belonged to the prisoner. The evidence further showed that the accused gave the pop gun to David Naia on the day of the killing.
32. Murder involves a death. Death removes the sanctity of a person’s life for ever. Every person has life only once. It cannot come back once life is removed. Therefore, life is precious and sacred to each person.
33. The Constitution under s 35 recognises and proclaims the right to life of everyone which undoubtedly includes the prisoner. No one can deprive a person of that right except through natural causes or prescription of law.
34. In the present case the late Doctor’s life was prematurely terminated in an unlawful and unprovoked act out of a failed armed robbery.
35. Armed Robbery is an intrusion into the privacy and wellbeing of innocent people by self-centred offenders who in my view are completely blinded by inferior human traits such as greed and jealousy.
36. The offence infringes on the freedom, encroaches on the privacy, and instils fear into unsuspecting persons who become victims. Innocent people are subjected to harm, and loss of property.
37. A lot of innocent people have been either injured or killed as in the present case.
38. Murder is prevalent. Despite the high sentences imposed by the Courts it seems the commission of the offence has not subsided. The Courts should not relent because of this. The sanctity of life must be preserved and protected in the best possible way the Court can contribute and one is through appropriate custodial sentences.
39. In the present case, I am mindful that the maximum prescribed penalty is life imprisonment. The only mitigating factor in his favour is that he is a first-time offender. The mitigating factor is rendered a nugatory in view of the seriousness attached with the murder. He ran away soon after the killing and remained at large for more than two years. He was apprehended after a tip-off in a police raid.
40. Out of his co-offenders one was sentenced to a paltry 35 years for the main perpetrator while the second was sentenced to 25 years for the lesser role he played. It is my humble view that the sentences were abjectly lenient under the given circumstances of the case for which this Court must also pass judgement on. The sentencing discretion of this Court is inadvertently inhibited by the earlier sentences considering the parity principle. It is also considered that a sentence higher than those imposed on his co-offenders would amount to a substantial disparity to the sentence imposed on the main perpetrator and tantamount to abuse of sentencing discretion.
41. In this jurisdiction the law on sentences involving multiple offenders is two-fold. The general rule is that all active participants in the crime should be sentenced on the same basis. All are equally guilty because without each playing his full part the crime could not be perpetrated. (See Gimble v State [1988-89] PNGLR 271.
    
42. The other stands for the proposition that each offender should be punished according to the degree of culpability or participation. (See The State v Tom Keroi Gurua & Ors (2002) N2312; State v Edward Taule & Ors (2000) N2299).
43. In the present case in the exercise of discretion the “same basis” principle should apply.
44. The defence submission for a disparity in sentencing on the premise that the prisoner played a lesser role is rejected.
45. The prisoner’s involvement does not amount to a lesser role. He was the owner of the home-made gun that was used by David Naia to shoot the Doctor. He gave it to David Naia just before the deceased was shot. Hypothetically speaking, had he not owned the gun in the first place nor given it to David Naia, the killing would not have occurred.
46. Why he owned such a gun is no longer a mystery now given his involvement with others to commit armed robbery, an unlawful act. It was home-made and clearly unlicenced.
47. It is further aggravated by the fact that the innocent life of Doctor Rangap was prematurely terminated. He had many years ahead of him. His death was a great loss to the family and the country. Doctors are a necessity in life. Doctors don’t just emerge out of nowhere. They are not easy to get. They are persons who selflessly provide a very essential service to maintain quality of life. To terminate his life in such wanton killing reflects the perpetrators as animals who lacked reasoning.
48. It is considered that the prisoner’s culpability is at par with his co-accused who pulled the trigger and his sentence must be the same.
49. To accept the suggestion that his upbringing in a purportedly crime infested area had influenced his involvement in the crime is akin to validating the commission of an unlawful act as a norm, warranting leniency. It should not be condoned as it will naturally open the flood gate to would-be offenders that it was okay to commit a crime if you are from a purportedly crime infested area.
50. Even if the area is deemed crime infested, the community involvement in this crime speaks otherwise. The community set upon his family’s property.
51. The community response to the killing displays utter disgust at the commission of an unlawful act in their area. The suggestion by the defence cannot operate in favour of the prisoner in sentencing.
52. As to the stigma faced through adverse publicity and destruction to home and property, it is a consequence of falling out of line with the law notwithstanding that the destruction to home and property was unlawful. No leniency arises under these suggestions.
53. Finally, any discount available to a person who pleaded guilty early is not available to the prisoner. His valiant effort to plead alibi failed after a long trial.
54. Prisoner Junior Solo aka Ala is sentenced to 35 years imprisonment as a principal offender for murder. The period spent in pretrial custody shall be deducted and the balance shall be served at CIS Buimo.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner