The State v Anos Naime Maraga, Hariki Badi and Gaigo Arua (2002) N2433

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 02 June 2002
• Court: National Court
• Citation: (2002) N2433
• Year: 2002
• Judgement Number: N2433

Full Title: The State v Anos Naime Maraga, Hariki Badi and Gaigo Arua (2002) N2433

National Court: Gavara–Nanu J

Judgment Delivered: 2 June 2002

N2433

PAPUA NEW GUINEA

[In the National Court of Justice]

THE STATE

- v -

1. Anos Naime Maraga

2. Hariki Badi

3. Gaigo Arua

WAIGANI: GAVARA-NANU, J

2002: 16th May & 2nd June

CRIMINAL LAW – Sentence – Wilful murder – Maximum penalty to be reserved for worst type of offences – Circumstances in which maximum penalty may or may not be imposed – Extenuating circumstances warranting sentence less than the maximum.

CRIMINAL LAW – Sentence – Wilful murder – Criminal Law (Compensation) Act, 1991, ss. 2 & 4, Compensation Ordered as part of sentence – Compensation Ordered to restore community relations and harmony.

CRIMINAL LAW – Sentence – Wilful Murder – More than one Offender - Degree of participation in the crime to be reflected in the respective sentences imposed.

Cases Cited:

Ure Hane -v- The State [1984] PNGLR 105

Agiru Aieni and 12 Others -v- Paul T. Tahain [1978] PNGLR 37

Goli Golu -v- The State [1979] PNGLR 653.

Avia Aihi -v- The State (No. 3) [1982] PNGLR 92

Kuri Willie –v- The State [1987] PNGLR 298

The State -v- Nyama [1991] PNGLR 127

R -v- Herowa Poia & Ors [1964] PNGLR 187

Secretary for Law -v- Witsamp Binengain [1975] PNGLR 172

Passingan -v- Beaton [1971] PNGLR 206

The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65

The State -v- Morobet Aivui Koma and Peter Kevin [1987] PNGLR 262

Counsel:

A. Kupmain for the State

P. Pera for the Prisoners

SENTENCE

GAVARA-NANU, J : The accused have been convicted of the wilful murder of one Nicky Kelson, on 21st April, 2001, at the Baruni Tatana junction, contrary to s. 299 of the Criminal Code Act, chapter No. 262 (hereinafter referred to as ‘the Criminal Code’). The maximum penalty for this crime is death.

The circumstances in which this crime was committed have been fully canvassed in the judgment and I do not wish to repeat them here but for the purposes of determining the appropriate punishment for the accused, I will restate the relevant facts.

The deceased was killed in the afternoon of 21st April, 2001, by a bomb or an explosive devise (herein after referred to as ‘the bomb’), which exploded as he was bending down to pick up a stone from a pile of stones under which the bomb was planted by accused Anos Naime Maraga (hereinafter referred to as ‘Anos’) with the assistance of accused Hariki Badi (hereinafter referred to as ‘Hariki’) and accused Gaigo Arua (hereinafter referred to as ‘Gaigo’). In regard to Hariki, he assisted Anos by holding a gun and threatened the approaching Tatana people whom they had engaged in stone throwing fight along the Tatana causeway. He did that to keep the Tatana people at a distance to give Anos time to complete planting and concealing the bomb under the stones. And in regard to Gaigo, he assisted Anos with his presence as Anos was planting the bomb. He was also throwing stones at the approaching Tatana people also to keep them at a distance to give Anos time to complete planting and concealing the bomb.

Thus, the actual planting of the bomb was done by Anos. He was the actual perpetrator of the crime and Hariki and Gaigo having assisted him, are caught by s. 7 of the Criminal Code.

The killing of the deceased was the culmination of the events which took place earlier that day. It all started when the windscreen of Mr Brian Adira’s tipper truck was damaged by some Tatana people in the morning when Mr Brian Adira who is from Baruni village went in his truck to visit his father in-law in Tatana village. After his windscreen was damaged, Mr Brian Adira went back to Baruni and told his father Mr Adira Gumasa about the incident. He then went to the Port Moresby Police Station with his father in law and reported the incident to the police.

According to Anos, he started drinking beer with his brother from 10.30 am until 4.30 pm that day. He learnt of the incident regarding Mr Brian Adira’s vehicle at about 1.00 pm. Later in the afternoon, he went with Mr Brian Adira and other Baruni boys in Mr Brian Adira’s truck and fought the Tatana people at the Tatana causeway. That was when he planted the bomb.

In regard to Gaigo, he said, he slept until about 2.00 pm, and when he woke up, he heard about his uncle’s truck being damaged by the Tatana people. He later went to the Tatana causeway with Mr Adira Gumasa and Gaudi Adira. At the causeway, he helped other Baruni boys to fight the Tatana people.

Hariki said he was at the Rainbow Estate that morning. He drunk some beer there with Pispot Maraga for about three hours, then they went to Baruni. At Baruni, they continued drinking until about 4.00 pm. He later joined the other Baruni boys and went to the Tatana causeway and ended up taking part in the fight against the Tatana people. It was at that time, that he assisted Anos to plant the bomb.

It is to be noted that after the report was laid at the Port Moresby Police Station by Mr Brian Adira regarding the damage done to his truck by the Tatana people, the police went to the scene of the fight at the Tatana causeway. They got there while the fight was still in progress, but they did nothing to stop the fight or to arrest those who were involved in the fight. The police only went and escorted Mr Brian Adira’s family out of Tatana village.

According to the police, the Tatana people armed themselves with sticks and other weapons and set up road blocks along the causeway so they had to clear those road blocks to drive into Tatana village and back. The failure by the police to arrest or to stop the fight cannot be overlooked in determining the punishment for the accused, because had they stopped the fight or effected arrests, the whole incident may have been prevented.

It is clear that the planting of the bomb under the pile of stones by Anos was deliberate. It was a trap because the two groups were throwing stones at each other in the fight and Anos knew that anyone from Tatana who picked up a stone from the pile of stones would be killed by the explosion, and that is what happened. The deceased who was pursuing the Baruni people was killed when the bomb exploded on his face as he was bending down to pick up a stone from that pile of stones to throw at the people from Baruni.

The decisions by Hariki and Gaigo to assist Anos in planting the bomb were also deliberate and they knew the possible fatal consequences of their actions.

The crime of wilful murder is the most serious of homicide offences carrying the maximum penalty of death. However, the imposition of death penalty is subject to s. 19 of the Criminal Code, which provides for lesser forms of punishment, if there are mitigating circumstances. It is a trite sentencing principle that the penalty imposed by the Court must fit the crime. And to arrive at the appropriate punishment, all the circumstances of the case must be carefully taken into account. This equates with the principle that each case must be decided on its own merits.

Anos is now 25 years old while Hariki and Gaigo are both 18 years old. They are all first offenders. At the time of the offence, Anos was 23 years old and Hariki and Gaigo were 16 years old. Hariki was at Gerehu High School, doing Grade 9 and Gaigo was doing Grade 10 at the College of Distant Education. In case of Anos, he has Grade 6 education and was privately employed as a heavy equipment operator. All three accused are young and in the case of Hariki and Gaigo, they are still in their youth.

Mr Kupmain earlier urged me to impose the maximum penalty of death on all the accused. But after seeing the Probation Officer’s Means Assessment Reports on each of the accused, he submitted that life imprisonment may be appropriate. The Court requested those reports in order to determine as to whether compensation can be Ordered against the accused as part of their sentences, pursuant to ss. 2 and 4 of the Criminal Law (Compensation) Act, 1991.

In their respective Means Assessment reports, the accused said they are able to pay the maximum K 5,000.00, compensation in cash, if so ordered by the Court. They each said they have the money available.

It is the established principle of sentencing that the maximum penalty or punishment must be reserved for the worst type of offences. See Agiru Aieni and 12 Others -v- Paul T. Tohain [1978] PNGLR 37, Goli Golu -v- the State [1979] PNGLR 653, Avia Aihi -v- The State (No. 3) [1983] PNGLR 92 and Ure Hane -v- The State [1984] PNGLR 105.

In Agiru Aieni and 12 Others -v- Paul T. Tohain (supra), Wilson J. after stating the principle said, to apply the principle properly, the Court must inquire into how seriously the particular accused was involved in the offence, then the extent to which the accused was culpable. In other words, the extent to which the accused participated in the crime. This principle is significant in this case because, Anos was the only actual perpetrator of the crime while Hariki and Gaigo have been found...