The State v Chris George Josh & Livai Solomon (2020) N8258

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 March 2020
• Court: National Court
• Citation: (2020) N8258
• Docket Number: CR Nos 1884 & 1885 of 2016
• Year: 2020
• Judgement Number: N8258

Full Title: CR Nos 1884 & 1885 of 2016; The State v Chris George Josh & Livai Solomon (2020) N8258

National Court: Cannings J

Judgment Delivered: 12 March 2020

N8258

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1884 & 1885 OF 2016

THE STATE

V

CHRIS GEORGE JOSH & LIVAI SOLOMON

Cannings J: Madang

2020: 13th February, 12th March

CRIMINAL LAW– sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender's members of a group that ambushed another group, killing ten members of the other group – each offender convicted of one count of wilful murder.

Two offenders were charged with ten counts of wilful murder arising from an incident in which members of a tribe ambushed and killed ten members of another tribe. Each offender was, after a joint trial convicted of one count and acquitted on nine counts of wilful murder. The victims were different. The first offender shot and killed his victim, intending to cause his death. The second offender cut this victim with a bush-knife, intending to cause his death.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, brutal killing, ambush, offensive weapon used) is life imprisonment.

(2) Mitigating factors: no prior convictions, genuine attempts on behalf of offenders to engage in peace and reconciliation, high degree of co-operation with the Correctional Service and the Court.

(3) Aggravating factors: use of lethal weapons, brutal killings, involvement in an ambush and massacre.

(4) The mitigating factors warrant a sentence below the starting point. The sentence for each offender was 30 years imprisonment. There was no suspension.

Cases Cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Steven Ume, Charles Kaona& Greg Kavoa v The State (2006) SC836

The State v Andrew Manga (2017) N6998

The State v Chris BaurekCR 146/2009, 26.05.10

The State v Chris George Josh &Livai Solomon (2019) N7915

The State v DoniKakiwi& 96 Others (2018) N7385

The State v IsakWapsi (2009) N3695

The State v Joel Otariv (2011) N4409

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

The State v Luther Francis Melo (2016) N6267

The State v Mark Bongede (2012) N4683

The State v Mathew Lewaripa (2015) N6151

The State v Mathew Misek (2012) N4561

The State v Moses Nasres (2008) N3302

The State v Seth UjanTalil (2010) N4159

The State v Tun Mai Isaac (2014) N5595

SENTENCE

This was a judgment on sentence for two offenders convicted of wilful murder.

Counsel

F K Popeu, for the State

J Morog, for the Offenders

12th March, 2020

1. CANNINGS J: Chris George Josh and Livai Solomon were each convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code. It was established at the trial that they committed the offences against two victims in the following circumstances.

2. On Tuesday 26th of April 2016, there was an incident at Mutzing station, Markham District, Morobe Province, in which some students from the nearby Markham Secondary School took a can of Pepsi soft drink from a vendor without paying for it. A fight started because of this, which led to a conflict between members of the Amari tribe and members of the Atzera tribe. Both offenders are members of the Atzera tribe.

3. On Wednesday 27th April 2016 the fighting continued and classes at the secondary school were disrupted and some Amari students were assaulted and prevented from going to school.

4. Early on the morning of Thursday 28 April 2016, Amari tribesmen gathered at Umi market and started to march along the Okuk Highway, in the direction of Lae, to Zumim 1 and Zumim 2, where members of the Atzera tribe lived, to protest about ill-treatment of the Amari students. There were 500 to 600 men in the Amari group, some of them armed with weapons such as spears, sticks and bush knives. Between 7.00 and 9.00 am, as the Amari group was between Antiragen and Zumim 1, they were ambushed by a group of Atzera tribesmen who had been waiting for them. Shots were fired from firearms into the Amari group, and ten Amari men were killed, death being inflicted by gunshot and/or knife wounds. Those killed were:

· Matia Rabang, the deceased the subject of count 1;

· Kipikia Sabanga, the deceased the subject of count 2;

· Rabang Anang, the deceased the subject of count 3;

· Walter Wakim, the deceased the subject of count 4;

· Iragin Baiwan, the deceased the subject of count 5;

· William Iruba, the deceased the subject of count 6;

· Peter Muruai, the deceased the subject of count 7;

· Magia Wans, the deceased the subject of count 8;

· Dudu Damap, the deceased the subject of count 9;

· Kisia Kitum, the deceased the subject of count 10.

5. At the joint trial the offenders were each indicted on those ten counts of wilful murder. They were each acquitted on nine counts and convicted on one count of wilful murder.

6. Chris George Josh was convicted of the wilful murder of Peter Muruai (count 7). Livai Solomon was convicted of the wilful murder of Matia Rabang (count 1).

7. It was proven beyond reasonable doubt that Chris George Josh shot with a gun, after aiming at him from close range in a vulnerable part of his body, and unlawfully killed Peter Muruai, intending to cause his death.

8. It was proven beyond reasonable doubt that Livai Solomon stabbed and cut with a bush knife, on multiple occasions on vulnerable parts of the body, and unlawfully killed Matia Rabang, intending to cause his death.

9. The State led no direct evidence as to how the eight deceased other than Peter Muruai and Matia Rabang were killed or who killed them and failed to prove that either Chris George Josh or Livai Solomon should be convicted of more than one count of wilful murder each. Further details of their convictions are in the judgment on verdict, The State v Chris George Josh &Livai Solomon (2019) N7915.

ANTECEDENTS

10. Each offender has no prior convictions.

ALLOCUTUS

11. Chris George Josh stated:

I am innocent of this charge but somehow the Court has found me guilty. God only knows who is telling the truth and who is lying.

12. Livai Solomon stated:

I respect the decision of the Court but I did not commit this offence. I was not present and have no knowledge of what happened. I wish grace, love and peace for the Court. I have a wife and two children to care for. The education of my children has been greatly affected by my imprisonment

PRE-SENTENCE REPORTS

13. The Madang branch of the Community Based Corrections office prepared the pre-sentence reports.

14. Chris George Josh is aged 30, unmarried and has no dependants. He was living with his father in their home at Zumim 2 village at the time of the offence. His mother is deceased. He is the fifth born in a family of seven children. He has a grade 10 education and has a certificate as a heavy equipment fitter from Bulolo Technical College. He has had employment as a driver and mechanic. He has a strong family support network and a good reputation in the local community. His health is said to be poor but there was no medical evidence to support that contention.

15. Livai Solomon is aged 32, married and has two children. He was living alongside his parents in their home at Antiragen village at the time of the offence. He is the second born in a family of five children. He has a grade 8 education. He had employment as boss-crew on a PMV bus. He has a strong family support network and a good reputation in the local community. His health is sound.

16. Character references from community leaders and family members have been provided for each offender; and these have been supplemented by character references from the Correctional Service, showing that each offender’s conduct at Beon Correctional Institution has been exemplary and positively helpful in maintaining peace and good order at the institution.

17. Both pre-sentence reports are, however, skewed in favour of the offenders and I have difficulty in regarding the reports as an objective assessment of relevant matters to take into account on sentencing. Both reports give the offender’s version of events, which is a rehash of their evidence at the trial, denying commission of the offences. There are also reports of interviews with family members and other persons who attempt to say why the offenders have been wrongly convicted. Some parts of the reports read more like submissions on verdict made by a defence counsel than an objective statement of the personal circumstances of the offenders and whether the deceased’s relatives are interested in compensation.

18. Despite the shortcomings of the reports, the material presented is of some value as it shows that shortly after the incident in 2016 in which ten men were killed, local parliamentarians and other leaders contributed public money towards a mass funeral and burial and a peace and reconciliation gathering involving the Atzera and Amari tribes. There was a reconciliation ceremony of some sort conducted in July 2019, but the details in the supplementary pre-sentence report are vague. There has been no specific or direct...