The State v Ben Guna (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Miviri J
• Judgment Date: 19 June 2024
• Neutral Citation: N10867
• Citation: N10867, 2024-06-19
• Counsel: J, Kesan for the State,R, Mangi for defence
• Docket Number: CR No. 403 & 406 & 407 OF 2023
• Hearing Date: 18 June 2024,19 June 2024
• Court: National Court

N10867

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 403 & 406 & 407 OF 2023

The State

v.

Ben Guna (No 2)

Minj: Miviri J

2024: 18^th & 19^thJune

CRIMINAL LAW — PRACTICE AND PROCEDURE — Wilful Murder S 299 CCA — Death from Gunshot — Body Cut by Bush knives — Prisoner cut Deceased with Bush Knife — Prisoner Detained Wife of Deceased over a period & Raped Her — Very Determined Persistent Defiance of Rule of Law — Three Individual Offences — Three Separate Sentences — Totality Principle — Principal Offender — Intent to Kill — Killing — Worst Offence of Wilful Murder — Life Imprisonment.

CRIMINAL LAW — PRACTICE AND PROCEDURE — Rape S 347 CCA — Deprivation of Liberty Section 355 CCA — Wife of Deceased — Determined Persistent Abuse Defiance of Rule of Law — Innocent Persons Drawn Indiscriminately into — Protection of the Law — Protection of Women & Females — Prevalent Offence — First Offender — Principal Offender — Violation of a Married Woman — Forcefully Abducted & Detained Against Will Two Weeks — Strong Deterrent & Punitive Sentence — 20 years Imprisonment — 1 year Imprisonment for Deprivation of Liberty — Concurrent To Wilful Murder — Totality Principles — Life Years Imprisonment.

Facts

Prisoner was in the company of others who ambushed and shot the deceased in the forehead with a gun killing him. Then they set about cutting his body and then forcefully taking away his wife raping her along the way. Then taking her away to their village detaining her. There the accused sexually penetrating her without her consent.

Held

Worst offence of wilful Murder.

Persistent determined abuse of

Rule of Law

Protection of Law.

Prevalent Offence.

Punitive Deterrent Sentence individually & Severely.

Totality Principles

Concurrent sentences Rape,

Detention against Liberty

Life Imprisonment.

Cases:

1.Kalabus v The State[1988] PGSC 17; [1988–89] PNGLR 193(27 October 1988).

2.Aihi v The State (No 3)[1982] PNGLR 92(5 March 1982).

3.Lahui, Hetau, Noho and Eki, The State v[1992] PGNC 95; [1992] PNGLR 325(3 August 1992).

4.Pushi v State[2015] PGSC 11; SC1415 (26 February 2015).

5.Gimble v The State[1988] PGSC 15; [1988–89] PNGLR 271(27 July 1989).

6.Allan Peter Utieng v The State: SCR No 15 of 2000 (Unnumbered & Unreported Judgment of 23^rd November 2000).

7.Ume v The State[2006] PGSC 9; SC836 (19 May 2006).

8.Kovei v The State[2001] PGSC 5; SC676 (14 November 2001).

9.Simbe v The State[1994] PGSC 18; [1994] PNGLR 38(2 March 1994).

10.Kovi v The State[2005] PGSC 34; SC789 (31 May 2005).

11.Kerua and Kerua, Public Prosecutor v[1985] PGSC 8; [1985] PNGLR 85(1 April 1985).

12.Amoko, The State v[1981] PGNC 58; [1981] PNGLR 373(4 June 1981).

13.Wani v The State[1979] PGSC 30; [1979] PNGLR 593(30 November 1979).

14.State v Genia (No 1)[2024] PGNC 78; N10731 (27 March 2024).

Counsel:

J, Kesan for the State

R, Mangi for defence

Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the defendant

SENTENCE

19^th June 2024.

1.Miviri J: Ben Guna of Waramass village, Jimi, Jiwaka Province convicted of the wilful murder of one Philip Gilma now appears to receive his sentence of that crime. Not only that but he is also to be sentenced for taking away the wife of the deceased one Anita Philip then allowing another to rape her. Then taking her away, detaining her against her will and then raping her whilst confining her in a house against her will.

2. The offence of wilful murder pursuant to section 299 of the criminal code carries the maximum imprisonment of life. In the case of rape pursuant to section 347 he is also looking at the maximum of life imprisonment. Because the offence is committed after the husband is wilfully murdered. She is taken along the way raped, detained against her will, and then raped. It is in my view not a simple rape but is aggravated by these facts. She is treated like a sex object at the leisure and pleasure of the prisoner and accomplices. So, it will not be the case that 15 years imprisonment will be considered in his case. As it is aggravated and so will draw to the maximum of life imprisonment. It is clear that individual sentences for each of the three criminal offences convicted will draw the prisoner. But not automatic but dependent on the facts and circumstances set out. And the maximum penalty will draw if the determinations by the facts and circumstances paint this offence as the worst case, Kalabus v The State[1988] PGSC 17; [1988–89] PNGLR 193(27 October 1988). Life imprisonment was imposed upon the prisoner who had a prior conviction for rape. Who raped a nine-year-old girl killing her in the process. Life imprisonment was imposed as it was the worst case of its kind.

3. It is really a question of the facts and circumstances to settle what a worst case is. As no one case is the same each would draw its own sentence by its own facts and circumstances. Which is an intricate act of judicial discretion exercised in accordance. It is a balancing act between the aggravating, mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case, Aihi v The State (No 3)[1982] PNGLR 92(5 March 1982). What is aggravated immediate is that not only was the husband intended to be killed, and killed, but the wife was forcefully taken away raped along the way, taken detained against her will and then raped by the prisoner. After which she was rescued by relatives after two weeks. When other offences are compounded in the process of the original crime committed, then it would follow that the sentences imposed will reflect that fact, Lahui, Hetau, Noho and Eki, The State v[1992] PGNC 95; [1992] PNGLR 325(3 August 1992). Robbery of the subject vehicle with the deceased dragged along the streets of Hohola Port Moresby, landed life imprisonment because it was the worst case of its kind.

4. Here no evidence has come out as to why the deceased was set upon in the way he met his demise. And then his wife forcefully taken away, raped and taken away detained and raped. No motive has come out for the serious of offences committed in that way. No man is above the rule of law, all must adhere to the dictate and realm of the law. Defiance in this way will draw stern deterrent and punitive...