The State v Laurie Kemuel Paugari; and CR 813 of 2008; The State v Kopol Kepao; and CR 814 of 2008; The State v Raywill Parapen (2011) N4438

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 07 October 2011
• Docket Number: CR 859 of 2008
• Citation: (2011) N4438
• Court: National Court
• Year: 2011
• Judgement Number: N4438

Full Title: CR 859 of 2008; The State v Laurie Kemuel Paugari; and CR 813 of 2008; The State v Kopol Kepao; and CR 814 of 2008; The State v Raywill Parapen (2011) N4438

National Court: Salika, DCJ

Judgment Delivered: 07 October 2011

N4438

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 859 of 2008

THE STATE

V

LAURIE KEMUEL PAUGARI

CR 813 of 2008

THE STATE

V

KOPOL KEPAO

CR 814 of 2008

THE STATE

V

RAYWILL PARAPEN

Waigani: Salika, DCJ

2011: 07 October

CRIMINAL LAW – Sentences for murder – Section 300 of Criminal Code Act – Section 19 of Criminal Code Act.

MAXIMUM SENTENCE – reserved for worst murder cases – sentencing trends – the Court has a wide sentencing discretion to consider and to impose – the sentencing court should not be limited to and be bound by the range of sentences suggested by either the Supreme Court or the National Court. – the Courts sentencing discretion must not be seen to be watered down – the prisoner who instigated the trouble must receive a higher penalty than the other two.

Cases Cited:

Acting Public Prosecutor v Uname Aumane (1980) PNGLR 510

Simon Kama v The State (2004) SC 740

Goli Golu v The State (1979) PNGLR 653

Ure Hane v The State (1984) PNGLR 105

Manu Kovi v The State (2005) SC 789

State v Tupis Tom (No.2) (2009) N3675

State v Amos Young (2008) N3312

State v Baika Martin (2008) N3312

State v Kevin Wakore (2007) N3222

State v John Siure [2006] PNGNC 112, CR Nos 384 & 385 of 2005

State v Boat Yokum [2002] N2337

State v Harry Heni & 2 Ors; Cr Nos 487, 278 & 279 of 2009

Lawrence Simbe v the State (1994) PNGLR 38

Counsel:

Mr Ninkama, for Laurie Kemuel Paugari & Kopol Kepao

Mr Lakakit, for Raywill Parapen

Mrs T Ganai, for the State

07 October, 2011

SENTENCE

1. SALIKA DCJ: Introduction: The prisoners in this matter were originally charged with one count of willful murder but I found them guilty of murder instead under s.300 of the Criminal Code.

2. The offence was committed between 8 and 9 March of 2008 at Gerehu Stage 4 in Port Moresby.

Issue

3. The issue for the court to determine is what is the appropriate sentence to impose on the prisoners.

4. As subsidiary issue is whether the prisoners should receive the same sentence or different sentences.

FINDINGS AT TRIAL

5. It was a finding of the court at the trial that when Laurie Kemuel and the other prisoners met with Johnson Isau, Laurie told Johnson what happened to him. Johnson said they should go back to Ishmael’s house to sort out the matter. All the prisoners, including Saina and Johnson and others went to Ismael’s house and destroyed his house. Buka, the deceased was fatally wounded during that raid.

6. I made the point that I accepted Joy Ishamel’s evidence in that it was more truthful but I also said that even if I did not believe her story as to how Buka met his death it was still open to the court to convict each of the prisoners because they were present and part of the raid when Buka was fatally wounded. In other words if there was no direct evidence that each of the accused did not assault Buka, it was open to the court to find each of them guilty of murder because they were part of the group that raided Ismael’s house. They were not innocent bystanders or mere observers. They were there to retaliate for the injury caused to Laurie and his vehicle and would bring s7 of the Criminal Code into play.

7. Joy’s evidence at the time of the fatal assault on Buka was that she was sitting on the verandah with Buka when Kemuel hit him with a knife.

8. She also said Kopol hit him with an iron handle axe and that Raywill also hit him as well. She said Saina also hit Buka on the back.

9. It is rather unfortunate that others like Saina and Johnson Isau were not apprehended to bring them to justice. It is not late to still bring them to the court.

10. After convicting these prisoners the defence counsel requested an adjournment to get pre sentence reports on all the 3 prisoners. Since then, I have not been given a criminal circuit in Waigani and as a result time went by until now.

PERSONAL PARTICULARS

A. LAURIE PAUGARI

11. Laurie is 38 years old and is from Kumamanda village, Wapenamanda District, Enga Province. He is a Seventh Day Adventist church goer.

12. He is married and has 3 children and all reside at Section 240, Allotment 72, Gerehu Stage 2.

13. Laurie has 3 children from a previous marriage who attended the Amapyaka Highlands Lutheran International School.

14. He also has taken 4 other children from his current wife’s previous marriage who attend the Kopkop college.

15. He has a degree in law – Bachelor of Laws from the University of PNG.

16. Laurie has had several jobs and the most recent one was as a Personal Loans Officer with the Bank of South Pacific.

B. KOPOL KEPAO

17. Kopol Kepao is 20 years old now and comes from Rakamanda Village, Wabag, Enga province. He is a Seventh Day Adventist.

18. Kopol is single and was residing with his older sister and her husband prior to his incarceration at Simona Street Section 296, Allotment 38, Gerehu Stage 3(b). He had been living there for 9 years.

19. He comes from a family of 7 and is the 6th born in the family.

20. Kopol is educated to Grade 12 at the Boroko Flexible and Distance Education but did not complete that as a result of this charge and conviction.

C. RAYWILL PARAPEN

21. Raywill Parapen is a single 19 years old man and is from Rakamanda, Wabag in the Enga province.

22. He was living with his parents at Section 307, Allotment 47, Gerehu Stage 3 B and is a Seventh Day Adventist churchgoer.

23. He has two younger brothers and two younger sisters. He is the first born in the family.

24. This prisoner was dong his Grade 11 at the time of the incident then went onto do his Grade 12 after granted bail but when convicted he was incarcerated.

WHAT IS THE MAXIMUM SENTENCE FOR MURDER

25. Section 300 of the Criminal Code Act prescribes the maximum sentence to Imprisonment for life, subject to s.19 of the same Act. This means the court has discretion to impose any term up to a life imprisonment.

26. The imposition of a sentence is usually done to serve a purpose and the purpose is deterrence, separation, rehabilitation and retribution.

27. The Supreme Court in Acting Public Prosecutor v Uname Aumane (1980) PNGLR 510 said:

“Deterrence is one of the most frequently used purposes in sentencing Under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.

The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.

The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.

The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as "vengeance". This conveys the notion that the person who commits a crime must "pay" for it, or "deserves" it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as "payback". This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.”

28. For my part I agree with the principles as stated above by the Supreme Court relating to sentence and I adopt them in this case.

SENTENCING TRENDS IN THE NATIONAL COURT

29. What is the current sentencing trend? In order for the court to determine appropriate sentence, reference must be made to the current sentencing trend for the offence of murder.

30. The court...