The State v Wesley Nobudi, John Lulu Evoa and Franky Yalikiti Fravo (2002) N2510

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 24 December 2002
• Court: National Court
• Citation: (2002) N2510
• Year: 2002
• Judgement Number: N2510

Full Title: The State v Wesley Nobudi, John Lulu Evoa and Franky Yalikiti Fravo (2002) N2510

National Court: Sevua J

Judgment Delivered: 24 December 2002

1 Criminal Law—Sentence—Wilful murder—Principal offenders—Death resulting after commission of armed robbery.

2 Sentence—Youthful offenders—Youth as a mitigating factor—Whether the "Youth" mitigating factor should be considered in serious violent crimes.

3 Secretary for Law v Witrasep Binengim [1975] PNGLR 172, Porewa Wani v The State [1979] PNGLR 593, Goli Golu v The State [1979] PNGLR 653, Gimble v The State [1988–89] PNGLR 271, Ure Hane v The State [1984] PNGLR 105, The State v Ian Napolean Setep [1997] PNGLR 428, Paulus Mandatititip v The State [1978] PNGLR 128, Peter Naibiri and Kutoi Soti Apia v The State SC137 referred to

___________________________

N2510

PAPUA NEW GUINEA

[National Court of Justice]

CR 1174 of 2000

THE STATE

-v-

WESLEY NOBUDI

JOHN LULU EVOA &

FRANKY YALIKITI FRAVO

Waigani : Sevua, J

2nd, 6th, 12th & 19th December 2002

Criminal Law – Sentence – Wilful murder – Principal offenders - Death resulting after commission of armed robbery.

Sentence – Youthful offenders – Youth as a mitigating factor – Whether the “Youth” mitigating factor should be considered in serious violent crimes.

Cases cited:

Secretary for Law v. Witrasep Binenjing [1975] PNGLR 172.

Porewa Wani v. The State [1979] PNGLR 593.

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

William Ukukul Gimble v. The State [1988-89] PNGLR 271

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

The State v. Ian Napolean Seteb; N 1478, 31st October 1996

Paulus Mandatititip & Anor v. The State [1978] PNGLR 128.

Peter Naibiri and Kutoi Soti Apia; SC 137, 25th October 1978.

Counsel

P. Kaluwin for the State

F.Pitpit with I.Geita for the Prisoners

24th December 2002

SEVUA, J: On the 13th November 2002 this Court found the prisoners guilty of the willful murder of Robert Yamang contrary to Section 299 (2) of the Criminal Code by operation of Section 7 of the Criminal Code. It is now the duty of the Court to sentence the prisoners for this crime.

The judgment of the Court on verdict delivered on 13th November this year contains various findings of facts and conclusions drawn from those facts, therefore it is not intended to repeat those facts here save to highlight some of them for the purpose of sentence. Those facts and conclusions are matters of record. A summary of the facts will be sufficient here for this purpose.

On the 18th April 2000, the deceased, Robert Yamang, was killed instantly in front of his home at Gerehu Stage 3B in the National Capital District. He was shot dead at point blank by one Emmanuel Jawagi Goria with a factory made pistol. Emmanuel Goria also known by his friends by his alias “Emmex” escaped from prison so was not amongst these three prisoners during this trial. On the morning of 18th April 2000, Emmanuel Goria with three others still at large, Lawrence Aitsi, Peter and Morgan, whose surnames are not known, met with the prisoners at Waikele Bus Stop and planned to steal motor vehicles in the Gerehu area that morning. At that time, Emmanuel Goria was armed with a factory made pistol while Morgan had a home made pistol. After they all had agreed to this plan they set out towards Stage 3B to execute their plan.

At Stage 3B the prisoners and the others committed the first robbery. They robbed two female occupants of their vehicle, a green Mitsubishi sedan, which was driven by Lawrence Aitsi towards Stage 4. These prisoners and the others were in the stolen sedan. As they drove down the street, they saw the deceased in his white Nissan Sunny sedan parked outside his gate. He was still seated in the driver’s seat and his engine was still running. The stolen Mitsubishi sedan then stopped near the deceased’s car and angle parked in the front so as to prevent the Nissan sedan from moving forward. The reason the prisoners and their companions stopped near the deceased was to rob him of his vehicle too. This aspect of the case is relevant to the issue of whether the prisoners were to be convicted of willful murder by virtue of Section 7 or Section 8 of the Criminal Code, and this is set out in some detail in the judgment on verdict.

In front of the deceased’s house, but outside his gate, and in the full view of his wife and children, the prisoners Wesley Nobudi and Franky Yalikiti Fravo, with Emmanuel Goria and Morgan alighted from the stolen Mitsubishi sedan and effected the second robbery against the deceased. The deceased was forced out his car, his wallet stolen, and Franky Yalikiti Fravo got into the driver’s seat while Wesley Nobudi ran to the back seat after one of the deceased’s son (Canute Yamang), and a principal prosecution witness had recognized and called out to him that they knew who he was. The prisoner, John Lulu Evoa with Lawrence Aitsi and Peter remained in the stolen green Mitsubishi.

After Wesley Nobudi, Franky Yalikiti Fravo and Morgan had seated in the deceased’s Nissan Sunny sedan, Emmanuel Goria then followed the deceased who was walking back towards his gate. It must be reiterated at this juncture that, at this point in time, the common purpose formed by the prisoners and their friends had been achieved and they should have left soon after robbing the deceased. It should also be reiterated that this is an important factor in considering whether the prisoners were guilty as principal offenders by virtue of Section 7 of the Criminal Code. As lead counsel for the prisoners, Mr. Pitpit puts it, principal offenders in the second degree, which I assumed he was basing on the common law principle of first and second degree homicide depending on the degree of the perpetrators’ participation in the crime.

Near the deceased’s gate in front of his house, and whilst the deceased’s wife and children were watching from under their house, Emmanuel Goria tapped the deceased on his right shoulder and as the deceased turned his head backward, Goria shot the deceased on the right side of the head. The deceased fell and died instantly. The injury to the head was the cause of death as reported by Dr Jacob Morewaya who conducted the autopsy.

Again it is not necessary to delve into the discussions on Section 7 and Section 8 of the Criminal Code as this has been done in my judgment on verdict. Nevertheless, it needs to be reiterated and re-emphasized that the presence of the prisoners at the scene of the killing rendered them guilty as principal offenders by virtue of Section 7. This issue is discussed on pages 17 to 21 of my judgment on verdict. So, whilst I accept the prisoners’ counsel’s submission that the three prisoners did not pull the trigger, I have not found as a fact that they did, thus there is no dispute as to that fact. However, it is vital to the whole case, and I hope the prisoners fully comprehend and understand that they were convicted as principal offenders by operation of Section 7, and not because they pulled the trigger. I say this also in the light of each prisoner’s statement in allocutus that he did not intend to kill the deceased, which is tantamount to the prisoners maintaining their innocence even after they had been convicted of the most heinous and callous crime which carries the death penalty.

The defence counsel has advanced a number of submissions and referred to a number of cases in respect of the question whether this is one of the most serious cases of willful murder warranting the maximum penalty of death. I will be referring to a few of the cases he cited in his submissions. But first of all, Mr. Pitpit submitted that in considering whether or not the maximum penalty should be imposed, the Court should consider the following principles:-

(1) look at the offence and determine if it is a serious offence;

(2) look at the particular case before the Court to form a judgment

if it is one that falls within the most serious type of

cases category; and

(3) look at the particular offenders and decide if he or she deserves

the maximum punishment prescribed.

In relation to the first principle, it was submitted that willful murder is a serious homicide as it involves intention to kill and the defence acknowledged that willful murder is a very serious crime. In respect of the second principle, Mr. Pitpit submitted this case can be categorized as one of the most serious willful murder since the killing was perpetrated soon after an armed robbery; firearms were used; the killing took place in full view of the deceased’s family, and although there appeared to be no clear motive, it was an execution type killing. Counsel admitted and acknowledged that this case could be viewed as one of the most serious offence.

Thirdly, counsel went through the personal antecedents of each prisoner. Wesley Nobudi is 18 years old but was 16 at the time of the killing. He came from Kerawa Village, Boiken, East Sepik Province. He has been living with a brother at Gerehu Stage 3B for 5 years until 18th April 2000 when he...