The State v Paul Yepei (No 2) (2004) N2571

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 March 2004
• Citation: (2004) N2571
• Court: National Court
• Year: 2004
• Judgement Number: N2571

Full Title: The State v Paul Yepei (No 2) (2004) N2571

National Court: Kandakasi J

Judgment Delivered: 26 March 2004

1 CRIMINAL LAW– Particular offence—Wilful Murder—Group attack—Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role—Co–accused received 15 years in hard labour—Need to avoid disparity—Prisoner playing lead role, male and holding position of leadership warrant parity—25 years sentence imposed—Criminal Code (Ch262) s299.

2 The State v Ben Simakot Simbu (No 2) (2004) N2546, Goli Golu v The State [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v The State (No 3) [1982] PNGLR 92, The State v Andrew Aisa Keake (2000) N2003, The State v Ian Napolean Setep [1997] PNGLR 428, The State v Yapes Paege and Relya Tanda [1994] PNGLR 65, The State v Godfrey Edwin Ahupa (1998) N1789, The State v Ombusu (Unnumbered and Unreported National Court judgment of Doherty J, dated 17 February 1995), Charles Bougapa Ombusu v The State (No 1) [1996] PNGLR 335, The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997), The State v Arua Maraga Hariki (2003) N2332, Tony Imunu Api v The State (2001) SC684, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, Winugini Urugitaru v R [1974] PNGLR 283, Andrew Uramani v The State [1996] PNGLR 287 referred to

Decision on sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 97 of 1998

THE STATE

-V-

PAUL YEPEI

(No. 2)

VANIMO: KANDAKASI, J.

2004: 18th and 26th March

DECISION ON SENTENCE

CRIMINAL LAW- Particular offence – Wilful Murder – Group attack - Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role – Co-accused received 15 years in hard labour – Need to avoid disparity – Prisoner playing lead role, male and holding position of leadership warrant parity – 25 years sentence imposed - Criminal Code (Chp. 262) s.299.

Cases cited:

The State v. Ben Simakot Simbu CR 1413 of 2002 (delivered on 26th March 2003).

Goli Golu v. The State [1979] PNGLR 653.

Ure Hane v. The State [1984] PNGLR 105.

Avia Aihi (No 3) v. The State [1982] PNGLR 92.

The State v. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003.

The State v. Ian Napoleon Setep (Unreported judgment delivered on 31/10/96) N1478.

The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65.

The State v. Godfrey Edwin Ahupa (Unreported judgment delivered on 20/05/98) N1789.

The State v. Ombusu, Unreported National Court Judgment, dated 17th February 1995.

Ombusu v. The State[1996] PNGLR 335.

The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (a decision of Woods J. in Kimbe on 7th February 1997).

The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332.

Tony Imunu Api v. The State (29/08/01) SC684.

The State v Tony Pandau Hahuahoru (No.2) (Unreported judgment delivered 21/02/02) N2186.

Winugini Urugitaru v The Queen [1974] PNGLR 283.

Andrew Uramani & Ors v The State [1996] PNGLR 287.

Counsel:

F. K. Popeu for the State

D. Kari for the Accused

26th March, 2004

KANDAKASI J: You were found guilty on a charge of wilfully murdering one Jack Mandari (deceased) on 2nd March 1997 here in Vanimo. That was after trial.

The Court asked you to address it on the kind of sentence you should receive. In your address, you tried and in fact maintained your claim of innocence saying the actual killers are out there and said sending you to prison will shut the case completely. The Court informed you and it reiterates that, if that is true, you should disclose the names of the real killers so they could be dealt with.

The Relevant Facts

The facts of the case are set out in full in the decision on verdict and I need not repeat them here. However, for the purposes of sentencing, I note the following:

·The deceased was well known and a good friend to you;

·You and the deceased were on a women and drinking engagement from the afternoon of 1st to the early morning hours of 2nd March 1997 using a government or public motor vehicle;

·Moments before the deceased was attacked, you were with him and two women at a beach near a place known as the gravel pit;

·There the deceased was attacked by a group of unknown men;

·The deceased was rendered unconscious at that stage;

·You helped the attackers to take the deceased to another vehicle;

·You then went into a cover up operation by driving the vehicle you, the deceased and the women had been using and later pushing it off the road;

·You then took the deceased off from the other vehicle and placed him next to the vehicle you had used and pushed off the road to make it look like an accident;

·You did this after taking the deceased to a river and having him washed;

·Medical evidence establishes that the deceased died from a blow to his head, which rendered him unconscious and later bled to death;

·Your actions were contrary to that of a friend but one with intent to ensure the death of the deceased.

I find that this was an uncalled for killing brought about with the involvement of women and beer and abusing government property, principally by two experienced public servants holding responsible positions. If there was no beer and woman involved along with the abuse of the government or public motor vehicle, the death would not have occurred. A number of people and not you only, brought about the death of the deceased. You alone should know who was involved, why and how. If you do have a conscious and if indeed the deceased was a good friend, as you claim then, it is incumbent on you to name those involved to clear your conscious and to ensure that your soul and that of the deceased rest in good peace.

In addition to these facts, I note also your personal background. You are aged 47 and are married with three grown up children. You are well educated and have held various responsible positions with the government, with the latest as District Administrator for the Aitape/Lumi District here in the Sandaun Province.

Bearing these facts in mind, I now turn to the offence and the law concerning sentences in these types of cases. I do so by repeating what I have just said in relation to the case of The State v. Ben Simakot Simbu CR 1413 of 2002, delivered this morning.

Offence and Sentencing Tariffs

Section 299 of the Criminal Code creates the offence of wilful murder and prescribes its penalty. The penalty prescribed is death. This is subject to s. 19 of the Code, which has allowed for sentences other than death.

It is trite law that the maximum sentence prescribed in any offence is for the worse category of the offence under consideration. In the case of willful murder, the Supreme Court made that clear in Goli Golu v. The State. [1979] PNGLR 653. Numerous other judgments, such as the one in Ure Hane v. The State [1984] PNGLR 105 and Avia Aihi (No 3) v. The State [1982] PNGLR 92, reiterate that.

Bredmeyer, J. in Ure Hane v. The State, (supra) without exhausting the list, provided the following list of cases he considered serious kinds of wilful murder from pages 107-109 of the judgment:

“1. Wilful murder committed in the cause of committing a theft, robbery, a break and enter, or a rape.

2. Wilful murder of policeman or a prison warder acting in the execution of his duty.

3. Wilful murder committed in the cause of or for the purposes of resisting, avoiding or preventing lawful arrest or assisting in an escape from a lawful custody.

4. Wilful murder of a person in police or court custody.

5. Wilful murder in a payback killing situation of a completely innocent man.

6. Wilful murder in a second or third murder.

7. Any murder where the offender is a long record of violence such that he is likely to commit such offences in the future.

8. Wilful...