The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 July 2005
• Court: National Court
• Citation: (2005) N2868
• Year: 2005
• Judgement Number: N2868

Full Title: The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

National Court: Cannings J

Judgment Delivered: 21 July 2005

N2868

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1532-1541 OF 2003

THE STATE

V

JACKY VUTNAMUR AND KAKI KIALO (NO 2)

KIMBE : CANNINGS J

8, 23 JUNE, 21 JULY 2005

SENTENCES

Criminal law – sentences – Criminal Code, Section 300 (murder) – sentences for two prisoners – one convicted after pleading not guilty, the other after pleading guilty – both members of a gang that committed armed robbery of a store – police officer murdered in course of the robbery – neither prisoner fired shots that killed deceased.

Criminal law – sentencing guidelines for murder cases – recent Supreme Court decisions – identification of starting point for head sentence – identification of relevant considerations – application of relevant considerations.

Criminal law – sentences – suspended sentences – immediate suspension inappropriate in murder cases unless special circumstances or reconciliation and compensation process with deceased’s relatives is complete – each prisoner must serve minimum sentence after which suspension may be granted subject to conditions.

Two prisoners were each convicted of the murder of a police officer. The police officer was killed in a shootout with members of an armed gang who had just robbed a store at Kapiura, West New Britain. Both prisoners were members of the gang but neither fired the shots that killed the deceased. The first prisoner was the driver of a vehicle used by the gang. The second prisoner was armed and stood watch outside the store while others went inside. The first prisoner was convicted following a trial at which his defence of compulsion was rejected. The second prisoner pleaded guilty.

Held:

(1) This was a serious case of murder but not in the worst-case category.

(2) Guidelines given in recent Supreme Court cases taken into account. Simon Kama v The State (2004) SC740 considered; Manu Kovi v The State (2005) SC789 applied.

(3) Strong mitigating factors in each case were that neither prisoner fired any shots or did anything that directly killed the deceased; enabling the starting point to be reduced from a range of 20 to 30 years, to 10 to 15 years.

(4) The second prisoner’s surrender and confession to the police, his guilty plea and expression of genuine remorse were significant mitigating factors.

(5) Both prisoners have strong family support and have made some attempt at reconciling with the deceased’s relatives but in the absence of special circumstances, neither sentence is ripe for immediate suspension.

(6) The first prisoner is sentenced to 15 years imprisonment, with at least 9 years to be served.

(7) The second prisoner is sentenced to 9 years imprisonment, with at least 5 years to be served.

Cases cited

The following cases are cited in the judgment:

Charles Bougapa Ombusu v The State [1996] PNGLR 335

Kalabus v The State [1988] PNGLR 193

Manu Kovi v The State (2005) SC789

Simon Kama v The State (2004) SC740

The State v Jacky Vutnamur and Kaki Kialo (2005) N2848

Counsel

L Rangan for the State

O Oiveka for the first co-accused

R Inua for the second co-accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentences for two men convicted of murder. They are Jacky Vutnamur, the first prisoner, and Kaki Kialo, the second prisoner. They were convicted on 8 June 2005.

BACKGROUND

The incident

The murder took place at Kapiura in the Bialla District of West New Britain, on the morning of Monday 5 May 2003. A police officer, Walter Ajimba, was shot and killed during the course of an armed robbery of the Kapiura Trading store.

The prisoners were members of a gang of about six men who committed the robbery. The day before, some members of the gang had stolen a Toyota Hilux utility and this was used to take them to the scene of the robbery and as a getaway vehicle. Earlier that morning the gang had gone to Salelubu and held up another police officer from whom they stole a pump action shotgun, cartridges and police uniforms, which they used in the robbery. That police officer was forced to go with the gang and travelled in the back of the utility to the scene of the robbery and murder, and later escaped to safety.

Some gang members armed with firearms went inside the store, held up the staff, the manager and customers and stole K45,000.00 cash and K3,000.00 worth of store goods. They did not fire any shots while they were inside the store. They did not physically injure any staff members, customers or bystanders.

When the gang emerged from the store and were about to make their getaway, the police officer, Walter Ajimba attempted to apprehend them by firing shots from a gas gun. He struck one of the gang members but did not seriously injure him. Two of the gang members fired back and a shootout ensued, in the course of which Walter Ajimba was fatally injured. He was shot eight times. Neither of the prisoners fired the shots that killed Walter Ajimba.

The first prisoner stayed in the vehicle at all times. He was the driver. He drove the vehicle to the scene of the robbery and murder and drove it away as the gang escaped. When other gang members were inside the store, he stayed in the vehicle. There was another gang member outside with him who was armed, keeping watch and guarding the police officer who the gang had brought along under threat. The first prisoner was unarmed. He did not talk to anyone. He did not threaten anyone.

The second prisoner was armed with a gun and kept watch at the doorway of the store while other gang members went in and held up the manager. He was still at the store when the shootout started. Then he escaped with the others. He did not physically injure anyone in the course of the robbery.

Later events

The first prisoner surrendered to the police five days after the robbery and murder. He admitted driving the vehicle used by the gang but denied being a member of the gang and said he was coerced into doing it. He maintained his innocence up to and during the trial.

The second prisoner surrendered to the police around the same time as the first. He confessed to his involvement and cooperated with the police in their investigations.

Trial

On 18 May 2005 the two prisoners were brought before the National Court and jointly indicted for wilful murder under Section 299 of the Criminal Code.

The first prisoner pleaded not guilty, so a trial was held. Witnesses were called and evidence adduced. His main defence of compulsion, under Section 32 of the Criminal Code, was rejected. He was convicted not of wilful murder, but murder, due to the combined effect of Sections 8, 300(1)(b) and 539(1) of the Criminal Code. The basis of the verdict was that he was involved with others in prosecuting an unlawful purpose (the armed robbery) and a person was killed intentionally by a member or members of the gang. What saved him from being convicted of wilful murder was the conclusion that the offence of wilful murder was not a probable consequence of the armed robbery (The State v Jacky Vutnamur and Kaki Kialo (2005) N2848).

The second prisoner pleaded guilty to wilful murder. However, in line with the verdict on the first prisoner I substituted his plea with a plea of guilty to murder and convicted him accordingly.

Other matters

Both prisoners were also charged with unlawful use of a motor vehicle, armed robbery and unlawful deprivation of liberty. They have not faced trial on those charges. The State has elected to proceed first with the charge of wilful murder, as Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence (Charles Bougapa Ombusu v The State [1996] PNGLR 335).

As for the other gang members, the court has been informed that the prime suspect in the actual killing of Walter Ajimba has since been shot dead. The identity of the other gang members is known but their whereabouts are not. The two prisoners presently being sentenced are the only members of the gang to have faced trial.

RELEVANT LAW

Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

ANTECEDENTS

Neither prisoner has any prior convictions.

ALLOCUTUS

I administered the allocutus, ie each prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment.

The first prisoner, Jacky Vutnamur, stated:

This is my first time to be in court. I was born in this province. This is where I grew up and got married. I was not in the initial plan to do this...