The State v Anton Mond

• Jurisdiction: Papua New Guinea
• Judge: Liosi, AJ
• Judgment Date: 04 September 2016
• Citation: (2016) N6483
• Court: National Court
• Year: 2016
• Judgement Number: N6483

Full : CR Nos 538, 541 & 542 of 2013 The State v Anton Mond, Joseph Gemba and Peter Kepma (2016) N6483

National Court: Liosi, AJ

Judgment Delivered: 4 September 2016

N6483

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 538, 541 & 542 OF 2013

THE STATE

V

ANTON MOND, JOSEPH GEMBA AND PETER KEPMA

Kundiawa: Liosi, AJ
2016: 13th July & 4th September

CRIMINAL LAW – Sentence – Murder –Guilty plea – Sentencing guidelines in Manu Kovi discussed and followed – Courts sentencing discretion under s.19 unfettered – Extenuating circumstances and mitigating factors distinguished –Killing committed by deceased own blood relatives and witnessed by deceased 13 year old daughter are considered as further matters of aggravation –

Cases cited:
See Antap Yalu -v- The State Unreported Supreme Court Judgment

Avia Aihi -v- The State (No.3) [1982] PNGLR 92

Baipu -v- State (2005) SC796

Enn -v- State (2004) SC738

Goli Golu -v- The State (1979) PNGLR 653

Jack Tanga -v- The State (1999) SC602

Manu Kovi -v- The State (2005) SC789

Simon Kama -v- The State [2004] SC740

State -v- Daniel (No 2) (2005) N2890

State -v- John Kapil Tapi (2000) SC635

State -v- Kesino Apo (1988) PNGLR 182

State -v- Ketu (No:2) (2007) N3394

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

Thress Kumbamong -v- The State (2008) SC1017

Counsel:

Mr. J Kesan, for the State
Mr. M Yawip, for the Prisoner

JUDGMENT ON SENTENCE

4th September, 2016.

1. LIOSI, AJ: On 13th July 2016, the 3 prisoners pleaded guilty to 1 count of murder of one William Dua at Womatne Village, Gembogl District, Simbu Province contrary to section 300(1) (b) of the Criminal Code.

Brief Facts

2. The following are the brief facts upon which the 3 prisoners were arraigned and to which they pleaded guilty. It is alleged that on the 27th of November 2012, the 3 prisoners armed themselves with bushknives, went to the deceased house and confronted and attacked him inflicting grievous wounds to all parts of his body. The deceased subsequently died from the injuries he sustained. Their actions contravened section 299 of the Criminal Code Act.

Personal background

3. The prisoners are from Wotmane Village, Gembogl District, Simbu Province. Anton Mond is a villager, 44 years old and member of Catholic faith. He is married with 3 children who are now adults. Joseph Gemba is 29 years old, a member of the Catholic faith and is single. He is a villager and resident at Wotmane. Peter Kepma is a villager. He is also a member of the Catholic faith and is married with 3 children.

Antecedents

4. The 3 prisoners have no prior convictions.

On Allocatus the 3 Prisoners said the following

Anton Mond

He was sorry to the Court, God, and the community and to his brother who they killed. The deceased is his real brother. He smoked drugs and it affected his brain. He was unfit to live with them as he always threatened them with bushknives. He even killed his own wife and threw her body into Wara Simbu. They searched for the wife and found her body the next day. He reported him to the police. They then paid compensation of K10,000.00 and 11 pigs to the wife’s relatives. On a drug charge he was sentenced to 1 year and was serving that sentence when he escaped. After he escaped, they were all living in fear. He did not say thank you to them for working hard to pay compensation for his deceased wife. Instead he accused them of using sorcery to kill his wife and continuously threatened them. They did not have freedom to move around freely or even go to the garden. In the end they decided to cut his leg to minimise his threats. He is sorry that he is dead. He said they surrendered to Police. Whilst they were in custody their families paid K4, 000.00 cash and 5 pigs to the deceased family. He has been in custody for 4 years.

Peter Kepma

He said sorry to God, the Court, mother and father of the deceased and the community. He said Anton Mond has already spoken on his behalf. His lawyer will also speak on his behalf.

Joseph Gemba

He said, thank you for giving him the time to talk. He says sorry to God the Court and the community leaders. He said his big brother Anton Mond has already spoken on his behalf and therefore he does not wish to say anything.

Defence Submission

5. Mr. Yawip of Counsel submits that on allocatus, the co-offenders have expressed remorse. They killed him because he was threatening family members. That they only intended to do grievous bodily harm only. That at that point in time he was an escapee from Barawagi Correctional Institution Services. He was on remand after been charged for the murder of his wife. Whilst on remand, he was convicted of drug offences and was sentenced to 1 year. He was serving the sentence when he escaped and got murdered.

The Law

6. Section 300(1)(a) of the Criminal Code provides for the offence of murder. It states:

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

(a) If the offender intended to do Grievous Body Harm to the person killed or to some other person: or

Penalty; Subject to Section 19, imprisonment for life.

7. The maximum penalty is life imprisonment. It is trite law that maximum penalty is always reserved for the worst cases. Avia Aihi v. The State (No.3) [1982] PNGLR 92, Goli Golu v The State (1979) PNGLR 653.

8. Section 19 of the Criminal Code provides various sentencing options available to the Court. He submits the facts and peculiar circumstances of this case shows, it is not a worst. The following mitigating factors demonstrate this.

Mitigating factors

9. The prisoners and the deceased are all relatives. He submits the deceased was an escapee after he was charged with the murder of his wife. Whilst in custody, the co-offenders contributed K10, 000.00 and 11 pigs as compensation to the deceased wife’s relatives.

10. He escaped thereafter and returned to the village and started threatening the villagers including the 3 prisoners. He destroyed properties and wounded Joseph Gemba’s mother who is Peter Kepma’s wife. He never appreciated the compensation payments they made on his behalf. The villagers were tired of his behaviour. He submits the prisoner brought his own demise.

11. The prisoners have pleaded guilty saving time and resources. They each have no prior convictions and are first time offenders. They have also paid compensation to the deceased relatives although they are family.

12. He further submitted that the pain is self inflicting as they killed their own family member. State v. Kesino Apo (1988) PNGLR 182. The Supreme Court herein held that the traditional self primitive aspect relating to the killing of a relative are matters which may be taken into account on sentencing. However, there is no hard and fast rule that it should greatly reduce the sentence.

13. He submits that in the Supreme Court case of Manu Kovi SC 789, the Supreme Court found inconsistencies in range of sentence in homicide cases. It therefore developed a set of guidelines in an attempt to bring consistency. The Courts have since been relying on the guidelines.

14. Applying the guidelines in the Manu Kovi case he submits that the case falls between categories 2 and 3 of Manu Kovi.

15. Category 2 is as follows. Trial or plea – mitigating factors with aggravating factors no strong intent to do Grievous Body Harm – weapons used – some preplanning – some elements of viciousness – sentence of 16 – 20 years.

16. Category 3 – pre-planned vicious attack, strong desire to do grievous body harm – dangerous or offensive weapons used – other offences of violence committed – Sentence of 20–30 years.

17. He submits the appropriate penalty should be between 16–20 years. However, the Court is not strictly bound by the guidelines as each case must be decided on its own merits. He submits a term of 10–16 years would be appropriate.

State Submission

18. Mr. Kesan of Counsel submits the following. On 27th November 2012 at about 4 pm, the 3 prisoners were at home in Womatne Village Gembogl District, Simbu. The deceased William Dua was also there. He is one of their own brothers and a family member.

19. A couple of days earlier the deceased was released from custody where he was been held over allegations of murdering his wife. He blamed his own family members including the 3 prisoners for the death of his wife and started arguing and assaulting family members. The 3 prisoners became concerned about the behaviour of the deceased since been released from custody. On the day of the killing they were to have a Court case over an incident where the deceased assaulted a female member of the family and cut their dog.

20. The Court case did not proceed that day. Instead the 3 prisoners armed with bush knives and bow and arrows surrounded the deceased, chopped him and shot him with arrows and killed him. They caused the death by means of an act done in the prosecution of an unlawful purpose (assault). Such unlawful assault was of such a nature to endanger human life.

21. The...