The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2002) N2312
• Date: 11 December 2002
• Year: 2002

Full Title: The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312

National Court: Kirriwom J

Judgment Delivered: 11 December 2002

1 CRIMINAL LAW—Sentence—Murder—Death resulting from a failed abduction—Death caused in the prosecution of a common unlawful purpose—Parity Principle—Justification for disparity in sentences of co–offenders where one plays minimal role in the offence.

2 Sentence—Youthful offenders—"Youth" as a mitigating factor—Must be viewed subject to the prevalence of the offence charged.

3 Gimble v The State [1988–89] PNGLR 271, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Paulus Mandatititip v The State [1978] PNGLR 128, The State v Tau Ted Lahui [1992] PNGLR 325, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, Gimble v The State [1988–89] PNGLR 271, Winugini Urugitaru v R [1974] PNGLR 283,Goli Golu v The State [1979] PNGLR 653, Andrew Uramani v The State [1996] PNGLR 287, Mario Postiglione v R (1997) 189 CLR 295, Van der Worp v R [2000] WASCA 154 and MacPherson v R [2002] WASCA 287 referred to

General rule in sentencing of co offenders stated in Gimble v The State [1988–89] PNGLR 271 not followed.

Prisoners unlawfully entered the premises where the deceased and others had gathered for a prayer meeting whilst armed with homemade guns and knife. It is not exactly certain from the evidence what their motive was but they held up those who were there where some money was stolen from one of the victims. As they decamped after the robbery two tried to abduct a teacher's daughter amongst the group. The teacher reacted in his daughter's rescue and was gunned down.

In sentencing the prisoners the court raised the question of whether it must impose the same term of imprisonment on all of them as appears to be the general rule in Gimble v The State [1988–89] PNGLR 271 or must each be punished according to the degree of his criminal behaviour or culpability and personal circumstances.

Held: That each prisoner must be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances.

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Kirriwom J:

1. These three prisoners were found guilty and convicted of the murder of a schoolteacher, one Anthony Pokahun, at Marian Hill Primary School Wau, Morobe Province, on the night of 2 May 2002. The deceased was amongst a group of teachers, laity and clergymen praying rosary in a fully illuminated front yard of a teacher's house in the school staff residential area when these prisoners entered the premises through a hole in the fence and confronted them with home–made shotguns and a knife. They ordered them to lie down or remain still and cooperate while they robbed them. As they left after robbing them David Bawai grabbed the deceased's daughter and pulled her by her hand. She called out to her father to help her. The deceased went to his daughter's aid and fought David Bawai who was then assisted by Tom Gurua. During this struggle one of them shot the deceased.

2. It is now my unfortunate task to consider their punishment. I bear in mind that the maximum penalty for murder under s300 of the Criminal Code is imprisonment for life. The case of The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98 sets out the guidelines that remind trial judges on matters that need to be taken into consideration when determining penalty in murder cases which I need not repeat here.

3. It has been expressed in many judgments in both National and Supreme Courts that in homicide cases that there can be no worst or no less serious homicide. A loss of life lost through deliberate cold–blooded criminal act of someone cannot be measured by the nature of the acts that cause death such as a gun or fist or an axe to determine which one is worst than the other. It is immaterial if the victim dies from a bullet wound, a blow from a folded fist or a stick or a rock or an axe or a lethal injection of a poisonous substance using a needle. A death is a death. A life lost cannot be replaced and it is immaterial whether death is instantaneous or slow.

4. There are various factors that the court must bear in mind in sentencing an offender. What is the interest of the public in this case? Public interest needs to be taken into account in the sentence that the court imposes. The interest of the State as the sovereign whose law is broken must be considered. Of course finally the prisoner's own background and circumstances must also be taken into account.

5. From both the State and public perspective it can be appreciated as to why retribution would be seen as the most appropriate objective for punishment in this case. Increasing lawlessness involving crimes of violence using homemade guns is quite prevalent everywhere in the country. Places like Wau and Bulolo have become notoriously well known as crime–stricken towns.

6. Public has the right to be angry and agitated because it is the actions of these people that casts bad image and sends wrong signals to the world through the media. This is the biggest, apart from corruption at all levels of the society, contributing factor to the international community's diminishing interest in helping Papua New Guinea. We have a pretty poor record of showing any form of appreciation or saying thank you to our own hardworking people and to our overseas partners and visitors who come to help develop our country as crime continues to flourish everywhere.

7. The public in this case has every right to be up in arms for what happened to the deceased because this killing was quite unwarranted, unprovoked and uncalled for. The deceased was only a young man in his late thirties with a young family. He spent many years in his career as a teacher away from his own home and the city life to improve the lives of many young people like these prisoners through primary education in remote locations like Wau where many public servants dare not go and work there.

8. The public also has the right to be concerned about this particular killing because the deceased was gunned down in the presence of his family and fellow teachers inside the fenced and secured residential quarters where they were all gathered in prayer of the rosary under a fully lit arena with the Statue of the Virgin Mary before them for all to see. These prisoners had neither respect nor fear of God. They could have simply left them in peace to carry on with their worship and prayers. They could not careless whether these people were praying or partying. They went there with a prefixed mind to cause trouble.

9. This incident does impact adversely on the education system in its posting qualified and experienced teachers to remote locations known to be criminally volatile and Wau has been reputed to be such a dangerous place not only for teachers but other public servants as well. These three prisoners have been resident of Wau for long time and had gone to school there.

10. In considering the seriousness of this case, the court must also balance this factor with that of the offenders, the prisoners, their background and the circumstances under which the offence was committed and what mitigating circumstances there may be that can be taken into account in their favour. Every case has its own peculiar facts and circumstances that differentiate one from the...