The State v Tupis Tom; CR NO 504 OF 2008; The State v Nathan Bobi (No 2) (2009) N3675

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 23 March 2009
• Citation: (2009) N3675
• Docket Number: CR NO 226 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3675

Full Title: CR NO 226 OF 2008; The State v Tupis Tom; CR NO 504 OF 2008; The State v Nathan Bobi (No 2) (2009) N3675

National Court: Makail, J

Judgment Delivered: 23 March 2009

N3675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 226 OF 2008

THE STATE

V

TUPIS TOM

AND

CR NO 504 OF 2008

THE STATE

V

NATHAN BOBI

(No 2)

Mendi: Makail, J

2009 : 16th & 23rd March

CRIMINAL LAW - Sentence - Murder - Co prisoners - Death arising from night club drunken brawl - Mob attack - Powerful blow from fist - Left chest and abdomen - Respiratory failure and broken rib - First offenders - Prevalence of offence - 12 years imprisonment imposed - Act as personal and general deterrence - Criminal Code - Sections 19 & 300(1)(a).

Cases Cited:

Gimble -v- The State [1988-89] PNGLR 271

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

The State -v- Gibson Mondo (2002) N2339

Simon Kama -v- The State (2004) SC 740

Manu Kovi -v- The State (2005) SC 789

The State -v- Steven Mul Mangi (No 2) (2005) N2993

The State -v- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Soeto Wembu & Rose Sowell: CR No 229 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)

The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)

The State -v- Yuanis Ipiri (2008) N3512

The State -v- Juvenile “D” (2008) N3508

Counsel:

Mr. J Waine, for the State

Mr. P Kumo, for the two Prisoners

SENTENCE

23 March, 2009

1. MAKAIL J: On 13th March 2009, I found the two prisoners guilty of murdering one Ruben Arabe at Kamari village, Kutubu on the night of 27th September 2007 contrary to section 300(1)(a) of the Criminal Code. This was after they denied the commission of the offence and a two days trial was conducted to determine their guilt.

2. The background facts giving rise to how the killing occurred are found in my judgment on verdict of 13th March 2009. See The State -v- Tupis Tom: CR No 226 of 2008 & The State -v- Nathan Bobi: CR No 504 of 2008 (No 1) (Unnumbered & Unreported Judgment of 13th March 2009). I then heard submissions on sentence from both lawyers on 16th March 2009 and reserved my decision until 23rd March 2009 at 9:30 am and this is my decision.

BRIEF FACTS

3. The brief facts can be summarized as follows: the death of the deceased was a result of a typical night club drunken brawl. It was a case of a mob attack on one of their own mate, in fact a relative. On that tragic night of 27th September 2007 between 9 o’clock and 10 o’clock, the deceased, and the two prisoners were drinking beer together with some other people at Kamari club, in Kutubu of the Southern Highlands Province. An argument arose between the deceased and prisoner, Tupis Tom. The argument was over money. The deceased demanded Tupis Tom to give him money but Tupis Tom told him that he had no money left because he had spent it all on beer. The deceased swore at Tupis Tom by telling him to come and eat his penis. Tupis Tom being provoked by the deceased’s use of the foul or obscene language punched the deceased. This resulted in further exchanges of punches and wrestling between them.

4. The fight was broken up and Tupis Tom was removed from the club premises. While all these were happening, the co prisoner, Nathan Bobi also wanted to take part in the fight. He punched a nearby post 6 times and called out, “People die from my hands because I got power from Koiari”. It was a sign of declaration of some kind of super natural power he possessed. The opportunity to attack the deceased came when Tupis Tom was removed out of the club and the deceased was standing alone. That was the time Nathan Bobi closed in on him. On seeing Nathan Bobi closing in on him, the deceased raised his hands in surrender and told Nathan Bobi that he did not want to fight anymore but Nathan Bobi punched him on his left side between his chest and abdomen. The blow was very strong as Nathan Bobi is big in stature and also worked as a baggage handler with Airlines PNG Limited prior to the commission of the offence. The blow left the deceased gasping for air and a broken rib. The deceased fell down to the ground and died a few minutes later.

ALLOCUTUS

Tupis Tom

5. On his allocutus, Tupis Tom told the Court that he is very sorry for the crime he committed. He says that the deceased swore at him but he did not assault the deceased. He went outside of the club because he argued with the deceased. He also says sorry to the relatives of the deceased and also his own family. He asks for leniency from the Court.

Nathan Bobi

6. On his allocutus, Nathan Bobi told the Court that he is from Tubage village and has not been in trouble with the law before. This is his first time. He says that the trouble he committed was a result of the Court finding him guilty. And so, he accepts the decision of the Court.

7. He also says that he has a small brother aged 19 and doing Grade 8 and a small sister, aged 16 and doing Grade 6. He is responsible for paying their school fees. Now that he is in custody, there is no one to pay their school fees. Besides them, he has an elder brother who is paralyzed and very old parents whom he took care of while working with Airlines of PNG Limited.

8. He also says that he operated a trade store in the village to generate income to support himself and his family in addition to the income he received from a vanilla garden, about 1 hectare, and a poultry project. Apart from these responsibilities back in the village, he is also the Chairman of Aihatobo clan and is concerned about the affairs of the clan group.

9. Finally, he says sorry to the relatives of the deceased, his own family members and the Court for what he did. He asks for leniency and perhaps a good behaviour bond.

THE LAW

10. Section 300(1) (a) of the Criminal Code is relevant for our purposes. It provides as follows:

“300. Murder.

(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;

(b) ……..;

(c) ……..;

(d) ……..;

(e) …….;

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

11. I note the maximum penalty under section 300(1)(a) of the Criminal Code for the crime of murder is life imprisonment.

PRISONERS’ SUBMISSIONS

Tupis Tom

12. Mr. Kumo of counsel for the prisoner, Tupis Tom gives an account of the personal details of the prisoner as follows:

* He is 20 years old;

* He is single;

* He is from Kelan village;

* He completed Grade 2;

* He is a member of the Seventh Day Adventist Church, although he has backslidden;

* He was employed as a Chef with Awano Limited at the time of the offence;

* He has been in custody for 1 year and 6 months;

* His parents are dead;

* He has 6 sisters. 2 of them are attending Grades 8 and 9 respectively.

* He is responsible for his sisters well being; and

* He has not paid any compensation to the relatives of the deceased.

Nathan Bobi

13. As for the prisoner, Nathan Bobi, Mr. Kumo gives the following account as his personal details:

* He is 26 years old;

* He is single;

* He is from Tubage village;

* He completed Grade 10;

* He was employed with Airlines of PNG Limited at the time of the offence;

* Prior to that, he was employed by Air Niugini for 5 years;

* He has 2 brothers and a sister and responsible for their well being;

* He has been in custody for 1 year and 6 months; and

* He has not paid any compensation to the relatives of the deceased.

14. In mitigation, he concedes at the outset that the two prisoners’ cases were contested, hence a plea for leniency is not readily given by the Court. But he submits that the Court has discretion under section 19 of the Criminal Code to impose a lesser sentence than the maximum penalty of life imprisonment for the crime of murder. He submits that this is one case where the Court should exercise its sentencing discretion under section 19 of the Criminal Code by imposing a sentence less than the maximum.

15. First, he submits that although a person has been killed as a result of the actions of the two prisoners, it is not a worst case of murder. This is because there was no preplanning by the two prisoners.

16. Secondly, he submits that there was provocation in the non legal sense in that the deceased swore at one of the prisoner, Tupis Tom and this provoked him to assault the deceased. Although Tupis Tom fought with the deceased, he submits that the deceased did not sustain any notable injuries. Tupis Tom was removed from the club and it was Nathan Bobi who struck the fatal blow on the deceased. Unfortunately, the blow landed on the vulnerable part of the deceased’s body, resulting in his death. But he submits that the two prisoners did not attack the deceased with any object or weapon. They simply used their fists and that should weigh in their favour unlike other serious cases of murder where this Court had dealt with last year where weapons like kitchen and bush knives were used to kill the deceased.

17. Thirdly, he submits that the two prisoners had expressed remorse for their...