The State v Lui Nicky

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 20 October 2016
• Citation: (2016) N6499
• Court: National Court
• Year: 2016
• Judgement Number: N6499

Full : CR Nos 362, 363, 364, 365 and 366 of 2015; The State v Lui Nicky, Giri Kivovon, Darius Vokina, Benjamin Pidik and Tommy Noah (2016) N6499

National Court: Anis AJ

Judgment Delivered: 20 October 2016

N6499

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 362, 363, 364, 365 AND 366 OF 2015

THE STATE

V

LUI NICKY, GIRI KIVOVON, DARIUS VOKINA, BENJAMIN PIDIK

AND TOMMY NOAH

Kokopo: Anis AJ

2016: 19 July, 25 August & 20 October

CRIMINAL LAW – Sentencing - five prisoners found guilty of murder under section 300 of the Criminal Code Act Chapter No. 262 - conviction based on circumstantial evidence - whether each prisoners should receive the same sentence - principle of parity in sentencing followed - criminal culpabilities of each prisoner difficult to assess under the circumstances - prisoners continue to maintain their innocence during administration of allocatus - prisoners showed no remorse - mitigating and aggravating factors discussed - whether prisoners suitable for probation

Facts

Five (5) prisoners were convicted of murdering one Peter Migu on 26 October 2014 in Gunanur village at Gazelle, in East New Britain Province. They were initially charged with wilful murder but were convicted on the alternative charge of murder. Their convictions were based on circumstantial evidence. The prisoners however still claim that they were innocent.

Held

1. The Court considered and applied similar sentences for all the five (5) prisoners.

2. The Court did not consider compensation in this case as a suitable mitigating factor:

(i) because compensation was purposely carried out to enable normalcy and peace in the village after the death of the deceased, and it had nothing to do with admissions or expressions of remorse by the prisoners;

(ii) because the prisoners continued to maintain their innocence both during administration of allocatus and in their pre-sentence reports; and

(iii) because the prisoners failed to show remorse for their actions.

3. The aggravating factors outweighed the mitigating factors.

4. The prisoners were sentenced to 23 years each with hard labour less the time they had spent in custody.

Cases Cited:

Manu Kovi v. The State (2005) SC789

State v. Eremas Kuvir (2015) N6035

State v. John Kanua Siune (2003) N5014

State v. Johnson Maurani (2008) N3560

State v. John Wanimba and Ors (2005) N2863

State v. Laurie Kamuel Paugari and Ors (2011) N4438

State v. Philip Bira (2009) N3633

State v. Todd Mari (2011) N4306

State v. Tupis Tom and Nathan Bobi (No. 2) (2009) N3675

Thress Kumbamong v. The State (2008) SC1017

Counsel:

Mr L Rangan, for the State

Mr P Kaluwin, for the prisoners

SENTENCE

20thOctober, 2016

1. ANIS AJ: On 19 July 2016, this Court found the five (5) prisoners (prisoners) guilty of the alternative charge of murder under section 300 of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. The Court then conducted a hearing for submissions on sentences on 25 August 2016. The Court reserved its ruling to a date to be advised. I do so now.

FACTS

3. Briefly, the prisoners were found guilty of killing a deceased person by the name of Peter Migu (deceased). The prisoners and the deceased all come from the same village called Gunanur village in the Gazelle District of Rabaul in East New Britain Province. The killing occurred in the early hours on 26 October 2014. The Court found that the deceased was attacked by the prisoners when he stepped outside of his house that morning. No one saw the actual attack by the prisoners on the deceased outside his house. The prisoners were convicted by this Court based on overwhelming circumstantial evidence. There is a separate published decision on verdict, for this matter.

ISSUES

4. The issues are as follows:

(i) Whether the punishment or head sentence imposed should be the same for the prisoners?

(ii) What suitable punishment should be imposed on the prisoners?

(iii) Whether each, some or all the prisoners should be granted probation and if so what probationary terms should be considered and applied?

PERSONAL DETAILS, ANTECENDENT REPORTS & ALLOCATUS

(i) Prisoner Lui Nicky

5. Let me start with prisoner Lui Nicky. He is 21 years old and he is from Gunanur village of Gazelle in East New Britain Province. He did not receive any formal education and has never been formally employed. He is married and has a daughter who is three (3) years old. Only his mother is alive. He and his siblings are five (5) in total. He is the eldest.

6. The prisoner has no prior convictions.

7. During administration of allocatus, the prisoner said these:

"the Court found me guilty. I am at lost. I did not kill the deceased. I have no further things to say."

(ii) Prisoner Giri Kivovon

8. I turn to prisoner Giri Kivovon. He is 24 years old and is also from Gunanur village of Gazelle in East New Britain Province. Prior to committing this offence, he was second year student attending the Vunamami Vocational Centre in East New Britain Province. He has never been formally employed. He is single and his parents are alive. He and his siblings are seven (7) in total. He is the second born.

9. The prisoner has no prior convictions.

10. During administration of allocatus, the prisoner said these:

"I know that I did not kill Peter Migu. I am innocent in regard to the death. The Court has found me guilty and I am confused. I have nothing further to say."

(iii) Darius Vokina

11. The next prisoner is Darius Vokina. He is 32 years old and is also from Gunanur village of Gazelle in East New Britain Province. He completed grade 10 or high school in 2002. He attended the Port Moresby Technical College and graduated in 2005. He once worked as an auto mechanic with Gazelle Motors in East New Britain Province. He is married and has two (2) twin daughters who are five (5) years old. Only his father is alive. He and his siblings are six (6) in total. He is the second last born.

12. The prisoner has no prior convictions.

13. During administration of allocatus, the prisoner said the following:

"I know that I have not killed the person Peter Migu. I am innocent in relation to the death. This Court has found me guilty and I am confused about it. I have nothing further to tell the Court."

(iv) Benjamin Pidik

14. The next prisoner is Benjamin Pidik. He is 22 years old and is also from Gunanur village of Gazelle in East New Britain Province. Prior to committing this offence, the prisoner was a grade 10 student attending the Utmei Secondary School in East New Britain Province. He has never been formally employed. He is single and his parents are alive. He and his siblings are five (5) in total. He is the second born.

15. The prisoner has no prior convictions.

16. During administration of allocatus, the prisoner said and I quote:

"I know that I did not kill this person. I am innocent for the death of Peter Migu. I am confused when I was found guilty by this Court. I have nothing further to add."

(v) Tommy Noah

17. The fifth prisoner is Tommy Noah. He is 50 years old and is also from Gunanur village of Gazelle in East New Britain Province. This prisoner has refused to give information regarding his education and work backgrounds. He said he is single. He said his parents are alive. He said he has 11 siblings in total. He said he is the third born.

18. The prisoner has no prior convictions.

19. During administration of allocatus, the prisoner had these to say:

"I know that I did not murder Peter Migu. I am innocent to this death. The Court has found me guilty. I am confused about it. This is all I have to say."

MITIGATION & AGGRAVATING FACTORS

20. I note that both parties made submissions on the mitigating and aggravating factors. I have considered them. I will only set out the mitigating factors that I think and find as valid. In the present case, I only find one mitigating factor in favour of the prisoners, which is that the prisoners are all first time offenders. Compensation payment is normally regarded as a relevant mitigating factor. However, I have made it an exception for this case. I rule that it is not and cannot be regarded as a mitigating factor. I will explain that later below in my judgment.

21. In regard to aggravating factors, I will, in a similar fashion, only set out the aggravating factors that I think and find are valid. In this case, I list them as follows:

• loss of life

• pre-planned and group or mob attack

• vicious attack

• deceased suffered severe internal and external injuries

• attack at the home of the deceased

• lack of remorse or guilt

22. As it is shown above in my judgment, obviously the aggravating factors far outweigh the mitigating factor.

PENALTY FOR MURDER

23. The prisoners were all found guilty of murder under section 300 of the Criminal Code Act. Section 300(1) states and I read:

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if...