The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381

• Jurisdiction: Papua New Guinea
• Judge: Sawong, J
• Judgment Date: 14 July 2011
• Court: National Court
• Docket Number: CR. 195, 196,197, 198 & 199 of 2008
• Citation: (2011) N4381
• Year: 2011
• Judgement Number: N4381

Full Title: CR. 195, 196,197, 198 & 199 of 2008; The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381

National Court: Sawong, J

Judgment Delivered: 14 July 2011

N4381

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 195, 196,197, 198 & 199 OF 2008

THE STATE

V

GREGORY KIAPKOT,

MARTIN BIGIT,

TOBUNG PARAIDE,

PETER TAUL &

BOTCHIA AGENA

Kokopo: Sawong, J

2011: 5, 12, 14 April, 2nd May, 12th & 14th July

CRIMINAL LAW – Sentence – Multiple Counts of Wilful Murder – Multiple Wilful Murder – Worse Case of Wilful Murder – All first time Offenders – Whether Death Penalty or some other form of Sentence should be imposed – Death Penalty imposed – Criminal Code Section 299 (2), & s. 19 (1) (a a).

CRIMINAL LAW – Sentence – Multiple counts of Wilful Murder – Trial- First Offenders – mitigating Factors – Aggravating Factors – Extenuating Circumstances – Victim Impact Statements – Worst case of Wilful Murder- Circumstance of Crimes, Moral & Criminal Culpability so grave- Each prisoner be executed.

Case Cited:

Goli Golu v The State [1979] PNGLR 653

Avia Ahi v The State (1) [1981] PNGLR 81

Ure Hane v The State [1984] PNGLR 105

The State v John Wayake Kumani & Others [1992] PNGLR 524

Public Prosecutor v Don Hale [1998] SC 564

Application by John Mua Nilkare [1998] PNGLR 472

Joe Foe Lesley v The State (1998) SC 560

Tau Jim Anis v The State (2000) SC 642

Re application by Anderson Aigiru (2001) SC 671

Tony Imunu Api v The State (2001) SC 684

The State v Iroks Winston [2003] N 2347

Sara Kowa v The State (2004) SC 73

Manu Kovi v The State (2005) SC 789

Steven Loke Ume & Others v The State (2006) SC 836

Counsel:

N. Miviri, for the State

P. Kaluwin, for Gregory Kiapkot, Martin Bigit,

Tobung Paraide & Peter Taul

T. Potoura, for Botchia Agena

14 July, 2011

SENTENCE

1. SAWONG, J.: On the 4th of April this year, each of you were found

guilty and convicted on eight (8) charges each of wilfully murdering eight (8) different persons, namely, Ria Alphonse, Ismael Tibo, Anastasia Bolagas Maguri, Eremas Bokot Maguri, Bustaman August, Reagan Kiapmur, ToValaun Lauvo and Mathilda Maivon on the 26th of September 2007 at Makada point, in the Duke of York Islands of East New Britain Province.

Background

2. The facts are contained in the evidence by witnesses given at the trial. I do not propose to recite those facts or background in any great detail. Suffice it is to set out in a summary way the relevant facts for the purposes of considering the issue of what is the appropriate sentence to be imposed on each of you for the crimes each of you committed.

3. On the afternoon of the 25th of September, 2007 the five of you together with several others met at Kokopo and then proceeded by bus to the beach at Tavui No.1 where you drank some alcohol. In the course of drinking you discussed, conspired and planned to rob and kill the owners of the boat “Palex”. There in the evening, some of you and your accomplices went out and came back with two boats and some firearms. All of you then stayed at the beach and drank and spent the night there. The next morning the group of you devided into two groups. In the first group was Gregory Kiapkot and several of you who left early in a 75 horse power boat for the Duke of York Islands. The other group followed some several hours later also for the Duke of York Islands. The reason for going to the Duke of York Islands was to ambush the owners and passengers of the boat “Palex”. This was because Gregory Kiapkot was upset with the owners of the boat Palex in relation to some incident that had happened in the village which resulted in one of his relatives being severely injured. The two groups then met at the Makada point in the Duke of York Islands and waited for the boat Palex. Not long after, the boat Palex arrived at the scene whereupon you managed to block off its route. One of your boats blocked off the front part and the other boat with other accused then blocked off the rear part of the boat. When that happened, the operator of the boat attempted to escape but he was shot dead at point blank range by your accomplice Alex. Thereafter the crew of the Palex attempted to take over control of the boat but again one of your accomplices Anton also shot him dead with a gun. Thereafter you then took control of the boat Palex together with the other passengers in it and robbed them of their goods and murdered each of the victims. All eight of the passengers of the palex were murdered. It is clear from the evidence that a few days later, two bodies were recovered which was that of Anastasia Bolagas Maguri and Ismael Tibo. The other six people’s bodies have not been recovered.

4. After hearing submissions on sentence and in the course of conducting my own research, it occurred to me that counsels had not addressed their minds to the requirement of s.21A of the Criminal Code Act. This provision requires the Court to receive and consider victim impact statements from the victims or their relatives of a crime. I therefore recalled the matter to come before me on 2nd May 2011. On that day, the case came up before me. Present on that day were counsels for the prisoners, the State and also the Community Based Corrections Officer. I then informed all the parties that in view of the gravity of the crimes, I considered that all relevant matters should be placed before the Court for its deliberations. Consequently, I gave directions to the Community Based Corrections Officers to interview and obtain victim impact statements from relatives, church elders, village leaders and local councilors on behalf of the prisoners and the deceased.

5. I directed the community based corrections officers to obtain those statements and file them with the Court by 30 June 2011. These officers have interviewed and compiled written statements from the relatives of the various victims, the prisoners and their relatives and several community and church leaders. I wish to publicly acknowledge the hard work done by Mr David Paul Simiriong and his officers in obtaining and collecting those statements. Their assistance has made my task a little easier with what is usually a difficult and grave task. I thank Mr Simiriong for the task he has completed and assisted me with. The statements comprise 36 pages. I will refer to the contents of those statements in the later part of my judgement.

6. When I administered the allocutus to each of you, each of you made

statements. Firstly Gregory Kiapkot. In your allocutus, you maintained your innocence and told the court that you did not kill those persons. You told the court that you have a young family, a wife and several children and that you are a community health worker. You told the court that in your professional life you had always had a great respect for the sanctity of human life and that you had always respected the law. You pleaded for leniency.

7. Martin Bigit. You too said that you respected the court and also protested your innocence. You asked the court to be transferred to Kavieng jail.

8. Tobung Mesulam Paraide. You also said that you respected the court and that you did not commit the offence.

9. Peter Taul. You said that you respected the court and you were innocent. You complained that you have been mistreated by the Police and assaulted and that is the reason why you made admissions.

10. Bothia Agena. You said sorry to the court and said that you are a family man with 5 children. You told the court that you were a committee member of the church and also protested your innocence. You said that you had no grudges against the people who died and that you did not know any of them.

The Issue

11. The issue to be decided is what is the appropriate sentence that should be imposed on each of the offenders for the crimes that each of them have been convicted of.

Defense Submissions

12. I deal with the submissions made on behalf of the prisoners first. Counsel for Bothia Agena, Mr. Potoura filed an 18 page extract of submissions. He submitted that there were two issues before the court, namely:

1. Whether or not this case is one of the worse types of wilful murder cases and therefore should attract a maximum prescribed penalty of death.

2. Whether or not the court should take into account the degree of participation by each prisoner in arriving at the appropriate sentence on each of the prisoners.

13. He submits that it is trite law that the maximum sentence should be imposed only for the worse category of that particular crime under consideration. He submitted that the maximum penalty should only be imposed in those cases where they are categorized to be the “worse type” of cases. He relied on Goli Golu v The State [1979] PNGLR 653, Avia Ahi (No.3) v The State (1982) PNGLR 92 and Ure Hane v The State [1984] PNGLR 105.

14. Mr. Potoura submitted that since the amendment that introduced the death penalty, there have been a number of death sentences imposed on offenders who have been convicted for wilful murder. He referred...