The State v Paul Jimmy Moaina (1997) N1657

• Jurisdiction: Papua New Guinea
• Judge: Batari AJ
• Judgment Date: 30 October 1997
• Court: National Court
• Citation: (1997) N1657
• Docket Number: The State v Peter John Plesman
• Year: 1997
• Judgement Number: N1657

Full Title: The State v Peter John Plesman; The State v Paul Jimmy Moaina (1997) N1657

National Court: Batari AJ

Judgment Delivered: 30 October 1997

N1657

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 515 OF 1997

THE STATE

V

PETER JOHN PLESMAN

CR NO. 212 OF 1997

THE STATE

V

PAUL JIMMY MOAINA

Waigani

Batari AJ

21 October 1997

30 October 1997

CRIMINAL LAW — Sentence — Murder — Accuseds killed two brothers at their home in course of robbery — Killings in course of robbery — Degree of participation — Consideration of — Whether or not killing falls into worst category — Principles applied.

CRIMINAL LAW — Sentence — Murder — Plea of guilty — Mitigating factors — Aggravating factors — Co-accused with prior similar conviction — Higher sentence justified — Concurrent sentences — 25 years and 30 years.

The accused pleaded guilty to the murder of two brothers in the course of robbing them. The following judgment was delivered on sentence.

Counsel

F Kuvi for the State

D Sakumai for the Accuseds

30 October 1997

BATARI AJ: Peter John Plesman and Paul Jimmy Moaina, you have each pleaded guilty to one count of murder of Ephraim Makis and one count of murder of Albert Kapi Uming. The two counts of murder were charged on the same indictment and heard together as they arose from the same chain of events. It is now my responsibility to pass sentence.

On the night of 3 May, 1996 about 10:30 pm the deceased Ephraim Makis drove into his residence at the Christian Leadership Training Centre, at Waigani in the National Capital District (NCD). He was returning home from a trip to Lae, in the Morobe Province. With him that night were his brother Albert Kapi Uming and Philbert Aisi. As they were let through the residential gate, the two of you followed them in before the security guard could lock the gate. You were accompanied by two (2) others. The four (4) of you were armed with a shot-gun and a knife. Ephraim Makis was held up with the gun as he stepped off the vehicle. The two of you then demanded him and his companions to surrender their wallets. In the course of the robbery, the deceased Ephraim Makis attempted to wrestle the man with the gun. He was shot at point-blank in the head. His brother, Albert Kapi Uming tried to assist him. He too was attacked and stabbed in the back with the knife. Both men appeared to have died instantly.

That was a brief summary of what everybody agrees was a serious example of a callous and senseless killing executed with considerable violence and without apparent motive other than to rob somebody. There are no extenuating or mitigatory circumstances, but your lawyer, Mr Sakumai has ably argued that it is not the worst example of such a crime to come before the Court and it was in a way a chance rather than a planned killing.

In considering whether a particular offence is one of the worst examples of its kind, the Courts should have regard to the kind of case which is encountered in practice rather than to unlikely or hypothetical examples. In the case of Ure Hane v The State [1984] PNGLR, 105 in the judgment of Bredmeyer J. an attempt was made to list the most serious kinds of wilful murder. The types of situations mentioned exemplified the various circumstances in which wilful murder is committed. The list was not exhaustive. Such classification, is in my view applicable also to murder cases. In essence, homicide, be it wilful murder, murder, manslaughter or death arising out of negligent acts is committed under varying circumstances, some more serious than others. Besides, factors which may be considered on behalf of the person being punished may include one or more of those matters alluded to by McDermott, J. in SCR No. 1 of 1984: Re Minimum Penalties Legislation [1984] PNGLR, 314 at p.358:

" (1) the degree of participation: Secretary of Law v. Kaibug Jimbun & Anor [1976] P.N.G.L.R. 288;

(2) the degree of ignorance of the law: Ulao Amentasi v. Secretary for Law [1975] P.N.G.L.R. 134;

(3) the age of the offender: see Passingan v. Beaton [1971-1972] P.N.G.L.R. 206;

(4) that the offender is a first offender: Kondan Kale v. The State (Unreported Supreme Court judgment No. SC250, dated 8 June 1983);

(5) the offender's previous good record: Kondan Kale;

(6) restitution;

(7) the offender's physical and mental condition: R v. Kocan [1966] 2 N.S.W.R. 565;

(8) the remorse;

(9) the assistance given to police: R. v. McGrath [1971] P.N.G.L.R. 247;

(10) plea of guilty by offender: McGrath;

(11) aggravation offered by victim or provocation not amounting to an offence: Ure Hane v. The State [1984] P.N.G.L.R.105;

(12) the effect of the gaol term on offender's family;

(13) the effect of a gaol term on offender's job, education or income: Agiru Aieni v. Tahain [1978] P.N.G.L.R. 37;

(14) the technical nature of the offence;

(15) the customary punishment received or compensation paid to the victim: Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] P.N.G.L.R. 299;

(16) the prevalence of the offence.

The criminal cases are full of instances where one or more of these factors have been held relevant in sentencing offenders".

The degree of participation would not normally prevail as a mitigating factor where the fulfilment of the criminal act depended on each offender actively playing his part. In the case of Gimble v The State [1988-89] PNGLR, 272 the Supreme Court at p.273 stated -

"The general rule is that all active paticipants in...