Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Genia (No 2) [2024] PGNC 145; N10735 (9 April 2024)

N10735

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1482 OF 2021

THE STATE

V

ALEXANDER GENIA
(No 2)

Waigani: Miviri J
2024: 20^th & 22^nd March, 9^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S299 CCA – Trial – Intent to Kill – Deceased Secured Premises Father of Prisoner – Bumped Deceased with Own Vehicle – Prisoner Stabbed Deceased Repeatedly with a Knife – 18 Stab wounds all over Body – Author of Death of Deceased – Motive to Attack Deceased – Money of Deceased In Hands of Accused – Firearm of Deceased Intended to be Registered – No Registration Money In Hands of Accused Used – No Other Reasonable Hypothesis Other Than Guilt of Accused – Res Ipsa Loquitor – CCTV Footage – Wilful Murder In Motion Every Motion to Last Remaining Strength – Wilfully Bumping Deceased with Vehicle – Chasing Stabbing Deceased in Vehicle with knife Repeatedly & Randomly – Worst Case of Wilful Murder
Facts
Prisoner repeatedly stabbed the deceased. His life was not threatened nor was he acting to preserve his life or limb. Stabbed Deceased killing him. He intended to kill the deceased and killed him.

Held
Well, Planned.
Intent to kill.
Killing.
CCTV footage and other evidence beyond doubt.
Res Ipsa Loquitur.
Worst Case Wilful Murder.
Life Imprisonment Appropriate.

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Simbe v The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004)
Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)
State v Poroli [2004] PGNC 113; N2655 (25 August 2004)
State v Hagei [2005] PGNC 60; N2913 (21 September 2005)
Erebebe v State [2013] PGSC 9; SC1228 (2 May 2013)
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017)
Ume v The State [2006] PGSC 9; SC836 (19 May 2006)
Paege and Tanda, The State v [1994] PNGLR 65
Ivoro, Regina v [1971-72] PNGLR 374
The State v Ben Simakot Simbu (No 2) [2004] PGNC 225; N2546 (25 March 2004)
State v Mongi [2007] PGNC 135; N3259 (12 December 2007)
State v Mesuno [2012] PGNC 80; N4701 (8 June 2012)
Sanawi v The State [2010] PGSC 31; SC1076 (29 September 2010)
State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018)
Golu v The State [1979] PNGLR 653
State v Baga [2022] PGNC 345; N9771 (23 June 2022)
State v Hoffa [2022] PGNC 391; N9918 (13 September 2022)
State v Bungtabu [2020] PGNC 58; N8240 (11 March 2020)
Tardrew Public Prosecutor v [1986] PNGLR 91

Counsel:
L Jack & S Suwae, for the State
D. Kaiyok, for the Defendant

SENTENCE

09^th April 2024

1. MIVIRI J: This is the sentence after trial of Alexander Genia of Lalaura, Abau District, Central Province, who was indicted with one count of wilful murder of one Geoffery Paul Bull pursuant to section 299 (1) of the Code.
   
2. Much of the facts to which the prisoner was found guilty are not disputed. All are adequately laid out in the Judgement on verdict. For the purposes of sentence, it is necessary to set out that on the 19^th September 2019, at about 9.00pm he went to the BS Mart carpark at section 55, allotment 07, Soare Street, Gordons, National Capital District to meet Geoffrey Paul Bull in relation to a prior business deal. That property was a guarded property and there was only one security guard on duty that night. The Accused met the deceased in the carpark and were waiting for a third person to arrive. And they were there until the early hours of the morning of the 20^th September 2019. The Accused sat in the driver’s seat of the vehicle of the deceased, who was on the off-sider’s seat. Deceased came out and walked to the front of the vehicle and the accused ran him over with the vehicle.
   
3. The deceased managed to get up from there and ran, the Accused came out of the vehicle and the deceased chased after the accused who avoided and armed himself with a knife. The deceased jumped back into the vehicle and attempted to drive off. Unfortunately, the accused ran up to him in the driver’s seat and begun stabbing him with the knife repeatedly. A struggle ensued with the deceased stepping out of the vehicle and putting up a fight, but he was overpowered by the accused who repeatedly, and at random stabbed him until he collapsed to the ground. Whilst there he continued to try to fight for his life when guards outside the gate heard the commotion. They entered the premises to see what was happening. They assisted and stopped the accused from what he was doing.
   
4. The maximum sentence due for the crime of wilful murder under section 299 is life imprisonment. This is the maximum penalty by law. It is not automatic but dependent on the facts and circumstances of each case. Usually, the maximum penalty is reserved for the worst case. What is a worst case is a question of the facts and circumstances. No one case is the same each would draw its own sentence by its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92. And judicial discretion is not tied down as each case will draw penalty relative to its facts and circumstances: Simbe v The State [1994] PNGLR 38. No one case of wilful murder, or homicide is the same as the other each has peculiar facts circumstances that will eventually lead out into a proportionate penalty due: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). It would be the same in my view for the determination of an appropriate and proportionate sentence due the prisoner here.
   
5. He is a first offender aged 38 years old from Lalaura village in Abau District of the Central Province. And is of the Baptist Church married with two children who are below 12 years old. He is educated to grade 11 and 12 with a business Management Qualification. And was employed as trainee Store Manager with Fats Supermarket at Waigani here in Port Moresby. Including a logistic Clerk with trade winds Agency. And was self employed at the time of this offence. He has spent 4 years, 3 months 5 days whilst in custody on remand. Apart from these personal particulars I ask myself whether there are any other mitigating or extenuating circumstances that would entail in his favour in the sentence due him. His allocutus does not in my view materialize given the extent of the level of violence that is depicted out by the CCTV footage. There is no pity, no mercy, no restraint in the way he set about against the deceased. His expression that he is genuinely sorry and remorseful for what he did to the deceased is not homed out when the CCTV is played out. In my view I see the demeanour of a man who was determined to exterminate the life of the deceased. The stabbing was at very close quarters at random and swift against the deceased an unarmed person who was violently bumped by his own vehicle, reversed and then mercilessly set upon with the knife. The allocutus is a face to what is imminent, if it was the death penalty, I would have had no hesitation imposing, but here it is life imprisonment.
   
6. It is not reinventing the wheel, “The Supreme Court in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes have no boundary and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra) the parliament has already legislated the different types of homicide by classifying them into Manslaughter, murder, and wilful murder. In our view, it serves no purpose when the Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the value of lives that have been prematurely terminated. The notion of sanctity of life and Constitutional protection of lives therefore become meaningless and mere judicial rhetoric, Nimagi v The State [2004] PGSC 31; SC 741 (1 April 2004). This is underlying and applicable to the facts set out by this case which is considered in the determination of this sentence upon the prisoner.
   
7. The stiff penalties that are imposed by this court time and again reinforced by the Supreme Court on Appeal for instance in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) that has gone to set this facts and circumstances set out here as category 4 has not deterred would be offenders. It seems life has become cheap there is no hesitation to inflict as did the prisoner here. I do not find any evidence mitigating nor extenuating except the steel incline of the aggravating features which leave his allocutus next to nothing. It will not have any impact on the sentence due him. The aggravating features are so overwhelming that it leaves no option other than to go down a very determined and punitive sentence that must uproot him out of society’s grasp into where he will not return to torment as he did here. Extermination of the life of a fellow human being is against section 35 of the Constitution, the right to life. And the country is Christian and commandment number 6 of the Ten Commandments of God says, thou shall not kill and the bible Romans verse 6 lines 23 says for the wages of sin is death. And the sentence would be fitting of the crime if it were an eye for an eye, a tooth for a tooth. Therefore, it is right that the prisoner be accorded his just dues in law by his own facts and circumstances. He has written his own sentence by his own conduct.
   
8. Sentences that have been passed in wilful murders or homicide offences have been done so on the basis of the description and the evidence that have been held out to draw the sentence flowing. For example, in State v Poroli [2004] PGNC 113; N2655 (25 August 2004), the deceased was a policeman who was led up a small hill by a Pastor who left him to the hands of the prisoner and others. Deceased requested to have a few moments in prayer. As soon as he said amen and opened his eyes, the prisoner opened fired with a single shot from a homemade gun that went through his head and the brain killing him instantly. Death Penalty was secured on the evidence that was presented before the case. In State v Hagei [2005] PGNC 60; N2913 (21 September 2005) life imprisonment was imposed because, prisoner was taken to the relatives of the deceased, a young girl who was raped and then killed by the prisoner who hit her to the back of the head with a log. She suffered internal injuries and died. The relatives speared the prisoner with a spear to the chest. He died and was taken covered with a plastic to be put into the buka morgue when he became alive. He was for that reason sentenced to life instead because there was extenuating circumstances that imposed other than the death penalty.
   
9. In Erebebe v State [2013] PGSC 9; SC1228 (2 May 2013) public prosecutors appeal against sentence was upheld and the death penalty was imposed upon the prisoner for the death in respect of the wilful murders of Junior Jerry Malamamo, Gina Jerry, Bata Jerry and Kenuve Ekebae being counts 5, 6, 7 and 9, the prisoners are sentenced to death. including life imprisonments for deceaseds Jerry Malamamo, Sopue Aiyuwe, Lainmane Apailope, Malamamo Soboe and Malamamo Alipai being counts 1, 2, 3, 4 and 8. Five adults were shot to death and four children were killed by being cut and stabbed with knives. The evidence spoke to bring those sentences upon the prisoners. There were multiple deaths as in the case Hagena v State [2017] PGSC 55; SC1659 (11 December 2017) which also drew the death penalty upon the five prisoners’ appellants. Eight persons were killed at sea and their bodies dumped into the sea. One complete body was recovered in the dingy. The others had body parts seen at sea but not recovered. All were shot with guns and cut up all over the body with knives.
   
10. Death penalty was substituted for life imprisonment in the case of payback killing in Ume v The State [2006] PGSC 9; SC836 (19 May 2006). Death penalty was envisaged but life imprisonment was imposed in Paege and Tanda, The State v [1994] PNGLR 65 where it was an ambush in a tribal conflict. Yet in another case Ivoro, Regina v [1971-72] PNGLR 374 death penalty was imposed upon the prisoner for stabbing to death a woman. He had earlier on shot the companion of the woman with a .22 rifle and then stabbed him. He also shot another person earlier on with that rifle.
    
11. Still in yet another in The State v Ben Simakot Simbu (No 2) [2004] PGNC 225; N2546 (25 March 2004) the mother was raped and killed together with her baby the court imposed the death penalty as appropriate. A piece of iron was used to deliver the fatal blow upon both killing both. That is two lives wilfully murdered. Here is a single death but it is such that the deceased is lured into that secured and confined area belonging to the father of the prisoner. It is his area because it is of his fathers. It has a very strong fence around with gate that is manned by a security guard. Who is sent on errand by the prisoner on this occasion. It means the deceased is at the mercy of the prisoner. He is bumped by his own vehicle at speed by the prisoner at close quarters. Run over so that he is under the vehicle for 10 seconds. After which the prisoner reverses out and the deceased staggers out running to the side where the building in the way stops the prisoner running him the second time again. Then sets in motion what is set out in the beginning of this Judgement on sentence, in motion seen played back in a CCTV footage recording, as if to see out how the try is made in a NRL video playback of to gauge whether it was lawful or unlawful.
    
12. In the State v Mongi [2007] PGNC 135; N3259 (12 December 2007) prisoner killed the victim a 7-year-old girl who was collecting nuts. He followed and grabbed her. He led her to the cliff and punched her concussing her. Then he carried her to another area. There he tried to punch her again but missed and hit a rock. The same occurred again he became incensed and twisted her neck killing her instantly. He pleaded guilty and was affected by the voluntary consumption of marijuana. The Court sentenced him to death. Here the actions of the prisoner are as stated in the Judgment on verdict, it is res Ipsa loquitor. The motion caught on the CCTV footage played back equated no description given by a human being. Compounded with the evidence of Hugo Ningeara, this was not a triller movie but actually what happened to Geoffrey Paul Bull 56 years old, how he met his death at the hands of the prisoner. What was seen by Geoffrey Paul Bull as he died witnessed by the camera. No witness could describe it in the way it was seen in that footage caught out by the CCTV camera stationed there. Having viewed it, to my mind here was the prisoner weaving swaying out of the reach of the deceased getting away out of his grasp, returning unsuspecting from the back as he tried desperately to get away in haste repeatedly stabbed by the prisoner without mercy. Until he was no more life drained out of him only a trailer left to go desperately down to no avail no return to his family and life.
    
13. It is not a sorcery related killing as in State v Mesuno [2012] PGNC 80; N4701 (8 June 2012). There are no good reasons to deviate from what is due to the prisoner by his own facts and circumstances, Sanawi v The State [2010] PGSC 31 ; SC1076 (29 September 2010). In the State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018) prisoner laid in ambush and shot the deceased with a gun through the heart killing him. He was convicted of wilful murder and sentenced to life years because the deceased and his group were coming to the area of the deceased. It would have been a different sentence if it was the prisoner who sought out and killed the deceased. Here Prisoner set in motion all that leading to the death. It was an attack uncalled for. When the means to set in motion to kill a person is worked out in detail so that nothing is left to chance, it must befit that the prisoner be sentenced leaving no return because, Wilful Murder has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why in most jurisdictions it carries a fixed penalty – sometimes death but infrequently life imprisonment” Golu v The State [1979] PNGLR 653
14. 
    
15. These are the summary of the injuries on Geoffrey Paul Bull as seen by the doctor: -“
    

1. Puncture wound on left lung upper lobe, anterior.

2. Incised wound 25 mm on left side of chest 2^nd Intercostal space, penetrating into chest cavity, and 50 mm away from midline anterior.
3. 50 mm incision wound on left side of chest 4^th intercostal space 5 mm from midline anterior.
4. 25 mm incision wound on left 4^th intercostal space 90 mm from midline anterior.
5. Abrasion 80 x 50 mm on left frontal temporal region of the head.
6. Abrasion 100 x 30 mm on right side head, temporal parietal region.
7. 70 mm incision wound on upper lips, midline.
8. 30 mm stab wound on left shoulder posterior aspect 20 mm deep.
9. Multiple small incision wound on left hand both posterior and anterior aspect.
10. 50 mm incision wound on right lower quadrant of the abdomen penetrating into the cavity.
11. 60 mm incision wound to the right thumb palmer aspect 60 mm deep.
12. 40 mm incision wound on right forearm posterior 30 mm above the wrist.
13. 40 mm incision wound on right hand posterior aspect.
14. Small abrasions of both knees anterior.
15. 30 mm incised wound on right side of the chin (under).
16. 30 mm incised wound on the back of 7^th Intercostal space 15 mm depth.
17. 75 mm incised wound on left shoulder posterior aspect.
18. Fractured left rib 4^th and 5^th Anterior.”
    
16. The CCTV footage followed the electronics set settled in it to come out with the images that will equate and be second to none. There is no question posed against its electronical programming, nor the playback and timing in it. Its recording is what was in view of its electronical imaging it has done, the images that unfolded before it on that night 19^th and 20^th September 2019 between the timing its images, when Geoffrey Paul Bull was attacked and bumped with his own vehicle driven by the Accused. And the attempt by Geoffrey Paul Bull to escape the attack of the accused by getting desperately into the driver’s seat with his back to the Accused who came from the rear and started violently to stab him with ferocity and vigour, demonstrating intensity, in rapid succession. That is images by the camera positioned and installed as is seen playing no weapons in the hands of the deceased, or violence against the Accused by the deceased to draw his reaction with the knife. The echo is in the photographic evidence taken by Vincent Tapungu, photograph 47, 48, and 49 exhibit P8 and P9 of the same photographs.
    
17. It is clear from this footage that the accused has been preplanning what he is going to do to the deceased. He deliberately takes the key and turns the vehicle around facing the drive out gate. Moments before he bumps down the deceased with the vehicle, the brake lights are on, then they are off the vehicle is in motion picking up speed and bumping the deceased in that speed. Ten seconds lapse before he puts the vehicle into reverse running over the deceased who gets up in haste to run to the side followed by the accused in the vehicle. He is stopped in his tracks because there is a wall that the deceased runs to. It is not the scene that the deceased has a weapon which necessitates that he be bumped with the vehicle to disarm him. That is not the case. It is a calculated intent to maim and disable the deceased so that he is not in a position to fight back against the intent of the accused to kill him. This is evident when the deceased is wrestling with the Accused from stabbing him. The Accused is the aggressor and the stronger of the two. He is stabbing at a random indiscriminately at very close quarters body. It is as if the deceased is a pig that must be slaughtered to be eaten.
    
18. And the motive for the killing is depicted out by Exhibit D1 statement of Billy George brother-in-law of the deceased. He states that the Deceased paid him K 5, 150.00 in a Westpac Cheque that was cashed at Westpac Bank by the Accused who took K5000.00 and K150. 00 was given him Billy George. His evidence is clear that the registration of the firearm of the Deceased at the Firearms Registry Police Headquarters never took place. And time and again when this witness checked with the accused, he said there were problems with signature and would be registered as that was done. Up to the time of the meeting at the scene of the murder it was not settled that the firearm of the deceased to be registered through the assistance of the Accused was not done. Even the receipt of the K5000.00 did not see this out. So, there was motive against the deceased in the hands of the accused.
    
19. And with the sworn evidence from Hugo Ningeara, 41 years old, 6 years of Seminary Studies who was the Acting duty Manager of TSI Security. He had worked for 10 years for that Company. On that date he saw a man was sleeping on top of another and stabbing him with a knife. The gate was closed so he stood and watched with his guards. One of the men was calling out for help so we opened the gate and rushed inside and went to the man sleeping on top of the other stabbing him and removed the knife off him. He called police who were nearby to come because it was now a crime scene. When Police arrived, he identified the accused to police as suspect and handed over the weapon, knife. He helped the victim in his own vehicle to Pacific International Hospital, but he died. He searched his vehicle found his contact called Mt Hagen and spoke to the relatives of his passing who then called those in Port Moresby. There can be no doubts that the Accused had intended to kill the deceased. And he carried that intention into reality.
    
20. He is caught in action with the kitchen Knife Exhibit P10 confirming blood on both this knife and the bayonet type knife, both termed as murder weapons by Brian Takoboy Biotechnologist with Police Forensic Gordons. It is his action and no other, he alone is with the deceased to carry out the crime. It is beyond all reasonable doubt that he is the author of the death of the deceased Geoffery Paul Bull. And there cannot be any doubts of this fact because Exhibit P8 Statement of Vincent Tapungu dated 05^th November 2019 detailing and annexing 1 to 103 photographs shows that the Accused was well prepared to kill the deceased. Photograph number 78 and 79 is driver seat in his vehicle green and yellow strip bayonet type sword cover. Photograph 81, 82 to 85 is the black case, a semi-automatic blue in colour gun with ammunition. It was a licenced firearm in his name Alexander Genia which was in the glove compartment of his own sedan. Accused expected what he was to do, and he prepared himself to see that out. These evidence that fact overt.
    
21. Alexander Genia was armed with the black handle stainless steel kitchen knife 27.5 centimetres in length which was obtained off him at the scene of the wilful murder by the witness Hugo Ningeara and given to police. It is the same that is depicted in the Exhibit P9 (96) detailed by Senior Constable Vincent Tapungu Exhibit P8 photograph 96. It is confirmed by Biotechnologist Brian Takoboy, Exhibit P10 with blood independently verifying the CCTV footage, Hugo Ningeara, and the photographs. I am satisfied beyond all reasonable doubt that that is the murder weapon used by the Accused to inflict all the injuries set out by the medical evidence above. Because it is consistent with the measurements in the wounds set out by the Doctor which I have detailed above. I find as a fact that is the weapon which caused all the injuries to the deceased. And which was in the hands of the accused as he stabbed the deceased seen by the CCTV footage and the witness Hugo Ningeara. And that it is not the bayonet type knife because the depth and length of the wounds do not echo the blade of the bayonet in width and length. It is more consistent with the black handle stainless steel kitchen knife 27.5 centimetres in length. That is the murder weapon. The other was at the scene picked up by the accused as he explains in his record of interview.
    
22. These to my mind do not equate what this Court observed State v Baga [2022] PGNC 345; N9771 (23 June 2022), or State v Hoffa [2022] PGNC 391; N9918 (13 September 2022), or State v Bungtabu [2020] PGNC 58; N8240 (11 March 2020). I find no facts or circumstances peculiar to the facts here which are explicit demarcated out by the CCTV footage which no amount of persuasion will derail because it is res Ipsa loquitor, it speaks of itself. There is no more no less. It is the truth and nothing but the truth of the demise so tragically of Geoffrey Paul Bull that night in the hands of the prisoner. A mans life lost in this way leaves no room for what has been set out in Tardrew Public Prosecutor v [1986] PNGLR 91 (2 April 1986). It would be erroneous to go down a path to suspend sentence in the light of the evidence of the CCTV footage.
    
23. There is in my view no other sentence that would equate and be considered proportionate and fitting to what I have set out in minute detail in the Judgement on verdict other than the maximum sentence of life imprisonment upon the prisoner Alexander Genia for the wilful murder of Geoffrey Paul Bull committed by him as dated and timed set out above. There is extreme violence persistent determination to terminate deliberately without mercy the life of another the penalty is the ultimate of death if it was still the law. I would have had no hesitation to pass that upon the prisoner. An eye for an eye, a tooth for a tooth that is what is right and proportionate here. And in this regard, I adopt the words of the Supreme Court in Ume v The State (supra) adopted in Erebebe (supra) “....which is (a) premeditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, consciousless, senseless, pitiless, and unnecessarily tortuous see Profitt v Florida 428 US 249 at 255. The crime is committed by persistent, violent, wicked-tempered man with the uttermost ferocity and with cunning.” Regina v Peter Ivoro, per Prentice J at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances maybe, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances”.
    
24. It is one of the worst cases of wilful murder committed. It calls for nothing less than the maximum penalty due in law upon of life imprisonment and I so impose that upon the prisoner.
    
25. Life Imprisonment is imposed, and a warrant will issue to that effect against the prisoner Alexander Genia of Lalauara, Abau, Central Province forthwith for the wilful Murder of Geoffrey Paul Bull committed as dated and timed.
    

Orders Accordingly,
__________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Defendant