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State v Kiptaun (No. 2) [2021] PGNC 417; N9139 (19 August 2021)

N9139

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 536 OF 2020; CR 537 OF 2020; CR 538 OF 2020;
CR 541 OF 2020; CR 542 OF 2020; CR 543 OF 2020;
CR 544 OF 2020 & CR 545 OF 2020.

THE STATE

V

ISON KIPTAUN, DAVID LEE, TOBY KAROL, MICHAEL PAPI, MOSES MINIS LOKO, HERTUE KAROL, VINCENT PUNAU & STEVEN SINDOL
(NO. 2)

Manus: Geita J
2021: 19^th August

CRIMINAL LAW – Sentence after trial – Murder – Section 300(1) (a) Criminal Code - Mob attack on the victim as he lay wounded and helpless after a long chase - Alternative count of causing grievous body harm with intent applied

CRIMINAL LAW – Sentence – Alternate count of Murder - Section 299 (1) Criminal Code – All elements successfully made out save for intention – Wilful Murder count must fail.
CRIMINAL LAW - Section 7 Criminal Code invoked and successfully made out.

CRIMINAL LAW – Sections 4 & 20 Juvenile Justice Act 2014.

All accused were indicted on two counts. Wilful Murder under s. 299 (1(a) Criminal Code Act and in the alternative s. 300 (1) (a) Criminal Code Act. They were all found guilty of murder hence this sentence.

Cases Cited:

Gimble v The State [1988-89] PNGLR 271
Goli Golu 1979 and John Kalabus [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State [2005] PGSC 34; SC789
The State v Steven Loke Ume v State (2006) SC836
The State v Tom Gurua, David Bawai & Nimagi [2002] N2312

Counsel:

Linda Maru, for the State
Kusunan Pokiton, for the Prisoners

JUDGMENT ON SENTENCE

19^th August, 2021

1. GEITA J: All seven accused were found guilty after trial on 17 August 2021.The offence comes under Section 300 (1) (a) of the Criminal Code and attracts a maximum penalty, subject to Section 19, imprisonment.

2. The facts as found by Court on their convictions following trial are these: All elected to give unsworn statements. As a result of an earlier fight on 29 April 2019 one of their boys was cut by the deceased, Moses Papi Kolohi. The matter was initially settled but flared up again resulting in boys from nearby ward 7 villages of Langot, Punehandran and Penchal chasing the deceased towards the beach. The victim escaped.

3. When the deceased was sighted at the back of the Panaselu Health Centre a group of boys numbering 20 or so began assaulting him. As he succumbed to the long chase, he fell falling face downwards after being hit with a stone from the back of his head. Thereon he was hit with weapons ranging from, stones, dry coconut, piece of iron and bush knife etc.

4. The accused were identified as the main assailants, together with 3 or 4 other boys not in the indictment. The deceased was taken to Panaselu Health Centre and treated and later referred to Lorengau General Hospital with serious and critical wounds. He died along the way to Lorengau General Hospital.

5. The prisoners recorded no prior convictions according to the Public Prosecutor. Their allocutus was administered with their responses as follows: -

Pre-sentence Report.

6. Due to the circuit coming to an end tomorrow and the need to close this case the requirement for a pre-sentence report was foregone by defence counsel. However, every caution was taken to ensure that their personal particulars and other relevant information was given to Court by defence and in their respective allocutus.

Complainant’s Views.

7. Similarly, the views of the community and the deceased’s family were not captured in order to assist Court for the same reasons given above.

Aggravating Factors

8. The circumstances of aggravation in relation to this offence are as follows: Dangerous weapons were used: bush knife, sticks, stones, attack on defenceless victim as he lay on the ground, life lost, group attack, injury inflicted on vulnerable parts of the body head, attack vicious.

Mitigating Factors

9. As to mitigation Moses Minis Lokon pleaded guilty, all are first time offenders, remorse, defacto provocation, youthful offender.

Submissions on Sentence- Defence

10. Mr Pokiton addressed each of the prisoner’s degree of participation and submitted that they all be sentenced in the manner they acted and not collectively as a mob and invited Court to adopt the principle used in the case of The State v Tom Keroi Gurua (2002) N 2312. Counsel submitted that several other persons not on the indictment also took part in the assault of the deceased. As regards prisoner Moses Minus Lokon who pleaded guilty to the wilful Murder count, a sentence of 10 years be considered. As for Vincent Punau and Steven Sindol a sentence of 7 years be considered as they were found guilty by operation of s.7 Criminal Code.

11. Counsel of defence correctly submitted that this case must be determined on its own peculiar circumstances: (Lawrence Simbe v The State [1994] PNGLR 38.) Section 19 Criminal Code was also brought to the attention of this Court.

12. Steven Loke Ume v State (2006) SC 836 sighted. The Court considered the issue of each prisoners’ involvement where there are multiple attackers. Same in this case.

13. Counsel of defence sighted the Gimble case but opted for Kirriwom J’s approach. He submitted for a high 12 years with PTC and suspensions.

14. The Court was invited to consider sentencing options under the Juvenile Courts for prisoner Toby Karol (s. 18 of the Juveniles Court Act 1991 as amended.)

Submissions on sentence- Prosecution

15. Counsel of State Ms Maru submitted that prison terms of 20 -30 years be considered for the prisoners. Her submissions were based on the sentencing tariffs of Manu Kovi, category 2.

Application to the case

16. Both Counsel have correctly referred the court to the applicable sentences available under the sentencing tariffs in the case of Manu Kovi. I will be guided by those tariffs. I also remind myself that the maximum punishments are best left for the worst types of cases. (Goli Golu [1979] and John Kalabus [1988] PNGLR 193. Although this act of killing was uncalled for and cowardly, I do not consider it to be of the worst category and will not apply that sanction.

17. Defence Lawyer referred me to the case of Gimble v The State [1988-89] PNGLR 271. The Court held that the general rule when sentencing all active participants in the crime to be sentenced on the same basis. All are equally guilty because without each playing his full part the crime could not be perpetrated.

18. The State v Tom Gurua, David Bawai & Nimagi [2002] N2312. The Nimagi (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).

19. The sentencing tariffs in the case of Manu Kovi are reproduced here for ease of reference:

SCHEDULE

SENTENCING TARIFF FOR MURDER OFFENCES

Court

20. I am satisfied that this was a mob attack and other persons also contributed to the death of the victim. At least three other persons were named in the evidence. It follows that many more not on indictment contributed to the victim’s death. As it stands there is no serious contention on what each of these prisoners did: Ison Kiptaun, Toby Karol and Moses Minis Lokon. They are caught by operation of s.7 of the Code. As for Toby Karol. I will accord him the sentencing benefits under the JCA. Might I say in passing that Counsel of defence is partly at fault for not bringing this issue to the attention of Court.

21. I take into account that all of you have no prior convictions and have families. I also take into account that you were all found guilty after trial with exception of Moses Minis Lokon. Moses Minis Lokon initially pleaded guilty to the Wilful Murder count. Since the Court has ruled lack of intent, I will treat his case under s, 300 Murder and consider his sentence under this heading.

21. The peculiar feature in this case is that evidence is suggestive of the fact that other persons not charged also played a part in contributing to the eventual death of late Moses Papi Kolohi. Put simply this was a mob attack. As such it is not possible to put blameworthiness or culpability squarely on an accused or accuseds. Having to do so would amount to doing an injustice to all the accused.

22. To this end I will err on the side of caution. Due to the foregoing reason, I will apply the State v Tom Keroi Gerua principle devised by late Kirriwom J.
Parity Principle......... where one plays a minimal role. This case is one of those that fits squarely within the ambit of this principle. It follows that a head sentence at the upper end of category 2 of the tariffs set in Manu Kovi will be applied, i.e.. 20 years, with downward or upward movement considered. I will make allowances for the fact that this was a mob attack and other persons were involved therefore I will make a deduction of 5 years. All your starting sentence will be 15 years.

23. Applying the Gerua principle in your case your sentences will be determined on a scale from 0% - 100% depending on the extent of your involvement and or participation.

24. Furthermore, in the interest of restoring peace, normalcy, and good will in your two communities, ward 7 and Panasulu village, a restorative and restitution approach has been considered in your sentences.

Sentence.

25. I sentence you all individually in this manner:

Court Order:

26. In the event of any breach of the probation conditions by juvenile prisoner Toby Karol, you will be recalled and made to serve the whole of the primary sentence adjudged against you. The same also applies to other prisoners.

Orders accordingly.

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