The State v Tony Pandau Hahuahori [Hahuahoru] (No 2) (2002) N2186

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 February 2002
• Court: National Court
• Citation: (2002) N2186
• Year: 2002
• Judgement Number: N2186

Full Title: The State v Tony Pandau Hahuahori [Hahuahoru] (No 2) (2002) N2186

National Court: Kandakasi J

Judgment Delivered: 21 February 2002

N2186

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 472 of 1999

THE STATE

-V-

TONY PANDAU HAHUAHORU (N0.2)

WEWAK: KANDAKASI, J.

2002: 19th, 21st, February

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Murder – Death resulting from failed robbery – Two gun shots fired at driver and passengers on highway – Six people including deceased seriously injured – One of them loss total use of one of his eyes – Prisoner with prior convictions – No good mitigating factors – Co-accused received 30 years on guilty pleas – Parity of sentence considered – Appropriate case to impose sentence over and above sentences received by co-accused – Life imprisonment imposed

Facts:

The prisoner was found guilty and convicted of murder following a failed robbery. That was after a trial. Five others were seriously injured in the incident leading to the murder including the total loss of one eye by one of the victims. His co-accused and him were rounded up by village leaders and handed over to police. The co-accused pleaded guilty and were sentenced to 30 years imprisonment. They were first time offenders. The Prisoner had a prior conviction for arson and failed to show by any evidence that the village leaders were wrong in including him in their round up of the offenders.

Held:

1. Given his prior conviction and not guilty plea resulting in a trial and having no mitigating factors in his favour he must be treated differently from his co-accused for the purposes of sentencing.

2. The crime of armed robbery is on the increase resulting in calls for stiffer penalties and as such, sentences higher than those already imposed must be given.

3. In the particular circumstances of the case, with the prisoner having no mitigating factor in his favour the maximum sentence of life imprisonment is appropriate and is therefore imposed.

Cases cited:

The State v. Laura (No. 2) [1988-89] PNGLR 98

The State v. Raphael Kimba Aki (N0.2) (Unreported judgement) N2082

The State v. Vincent Malara (CR 58 of 2000) unreported and unnumbered judgement delivered 20/2/2)

Winugini Urugitaru v. The Queen [1974] PNGLR 283

Andrew Uramani & Ors v. The State [1996] PNGLR 287

Goli Golu v. The State [1979] PNGLR 653

The State v. Jason Dongoma (unreported judgement) N2038

The State v. Peter Yawoma (unreported judgement) N 2032

Counsels:

Mr. M. Ruari for the State

Mr. M. Mwawesi for the Accused

21st February 2002

KANDAKASI J : On Tuesday the 19th of this month, I found you guilty on one count of murder contrary to s.300(1)(a) of the Criminal Code and convicted you for the murder of one Freddy Bill at Japaraka No.1 village on the 9th of March 1999.

The Relevant Facts

The relevant facts are set out in my judgement on the verdict handed down on the 19th February 2002. For the purposes of sentencing, the pertinent parts of the facts are these. On the night of the 8th of March 1999, you, Ben Wango and Nick Sengi Pori planned the robbery of a PMV armed with shotguns. The next morning you wake up early in the morning and after seeing your wife off to town, you and your gang proceeded with your plan against a PMV truck owned by Hama Brothers. That PMV was loaded with passengers and was heading for Wewak town.

You could not succeed on your robbery plan. So you used the guns to shoot at the driver and the passengers in a bid to stop them. The first shot was from the front of the vehicle, which penetrated the front windscreen all the way to the back shattering the glasses along the way. This did not make the driver stop the vehicle, so you fired a second shot at the vehicle. By this time the vehicle had passed you so you shot at it from the back.

The gun shots resulted in 6 people being seriously injured. They were rushed to the Boram Hospital for medical treatment. Of the 6 injured, 5 managed to recover. Unfortunately, one of them could not survive despite medical intervention as his brain was damaged by a gun shot injury to his head just above one of his eyes. Out of the 5 that recovered, one of them lost the total use of one of his eyes.

The Offence and Sentencing Trend

The offence with which you have been charged and found guilty and convicted of is provided for by section 300(1)(a) in these terms:

“(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person …

….

Penalty: Subject to Section 19, imprisonment for life.”

The case of The State v. Laura (No. 2) [1988-89] PNGLR 98 sets out the appropriate guidelines to be followed for sentencing in murder cases and they are:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

Recently, in my judgement in The State v. Raphael Kimba Aki (N0.2) (Unreported Judgement) N2082, I said at pages 4-5 after reviewing sentences in these types of cases that:

“Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;

2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate.”

That was in the context of an ordinary murder case. In your case, you murdered the deceased in the pursuance of another illegal activity, armed robbery. You and your gang not only shot once but twice using two guns. That resulted in the death of one person and 5 other persons sustained serious injuries including the loss of the use of one eye by one of the victims. There is no evidence before me that you or any of your co-accused had a valid license to carry a gun. Therefore, I find that you were also committing an offence when you carried a gun without license.

As I said just...