The State v Willie Marai

• Jurisdiction: Papua New Guinea
• Judge: Auka AJ
• Judgment Date: 20 March 2017
• Citation: (2017) N6693
• Court: National Court
• Year: 2017
• Judgement Number: N6693

Full : CR No 536 of 2016; The State v Willie Marai (2017) N6693

National Court: Auka AJ

Judgment Delivered: 20 March 2017

N6693

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 536 OF 2016

THE STATE

V

WILLIE MARAI

Wabag: Auka AJ

2017: 9th & 20th March

CRIMINAL LAW – Murder – Accused a juvenile offender with others attacked the deceased and his friends – His friends escaped – Co-accused stabbed deceased with bush knifes and caused wounds on hands and legs – Accused shot deceased on his back with homemade gun and died from injuries – Murder involving S.7 – Guilty plea – First time offender – Expression of remorse – Mitigation and Aggravating factors considered – Custodial sentence appropriate – Less time spent in pre-trial custody – S. 300(1) (a) and S.19.

Case Cited:

Clive Givero & 4 others v. The State SC Appeal decided on29.06.2000

Goli Golu v. The State [1979] PNGLR 633

Lawrence Simbe v. The State [1994] PNGLR 38

Manu Kovi v. The State (2005) SC 789

Peter Napiri v. The State SC137

The State v. John Kunua Sinve and Keith Sinue CR 384 & 385 OF 2003

The State v. Wapuka (2012) N4783

The State v. Mesuno & others (2012) N4701

Counsel:

Mr. E Thomas, for the State

Mr .J Kolowe, for the Accused

DECISION ON SENTENCE

20th March, 2017

1. AUKA AJ: The accused pleaded guilty to one count of Murder Contrary to section 300 (1) (a) of the Criminal Code Act. This provision reads;

“S.300 Murder

(i) Subject to the succeeding provision of this code, a person who kills another person under any of the following circumstances is guilty of Murder;

(a) If the offender intended to do grievous bodily harm to the person killed or to some other person; or.......

Penalty: Subject to S.19, imprisonment for life”

2. The brief facts of the case where that on Friday, 7th August 2015 between 4pm and 5pm, the deceased, Aimbol Papul was at Tendelen Village, Lower Wage Local Level Government, Kandep District, Enga Province in the company of others namely Max Leno and Masol Yalip.

3. The deceased Aimbokl Papul and his two friends followed a bush track to Aimbols Village at Kaimbe which is on the other side of Tendelen Village. The deceased at that time had some money in cash on him. While they were walking on that bush track they met the accused and his friends. The accused and his friends were armed with a homemade gun and bush knives and set about to attack the deceased and his friends. The deceased sustained bush knife wounds on his hand and legs and was shot in his back with the home made gun. The deceased fell to the ground and the accused and his friends fled. The deceased was then taken to the house of Masol Yalip were they sought to take him to the hospital but unfortunately passed away.

4. The state alleged that when the accused and his co-accuseds attacked the deceased, they had no lawful justification. State further alleged that the accused and his friends intended to cause grievous bodily harm to the deceased but he died as a result of his injuries. The state invoked S.7 of the Code in that the accused perpetrated this offence with the assistance of his co-accuseds.

5. A Medical Report of Dr Kandandru Pondros dated 26th October, 2015 confirmed the victim sustained bush knife wounds to his head and gunshot entry wound at the mid lumbar area.

6. The internal examination of the body revealed the following:

1. Gunshot entry wound of about 4cm X 2cm at the mid lumbar areas and 2 exit wounds. Epigastic exit wound of 6cm X 4cm, and left upper quadrant exit of wound of 6cm x 3cm.

2. Severed and recaptured small bowels perforated transverse colon, recaptured stomach, recaptured stomach, raptured spleen, raptured left kidney, numerous blood clots and facial spillage in the abdominal cavity.

3. Face – distorted, blood clots with nasal bone fracture.

4. Bilateral periorbital haematoma.

5. Frontal skull rugged laceration but no depressed skull fracture.

6. Left forearm bush-knife wound of 6 cm x 4 cm with displaced ulna and radius.

7. Right lower bush-knife wound of 6 cm x 4 cm but no fracture tibia or fibiula.

7. From the post-mortem findings, Dr Pondros concluded that the victim died from Cardio – Respiratory arrest from gunshot wounds and head injury with bush- knife wounds.

8. On his statement on Allocatus, the accused said sorry to the deceased and his relatives especially the Parents and the Community leaders. He also said sorry to his own parents. Also he said sorry to the court for committing the offence and asked the court to reduce the type of punishment that it may impose on him. He said he will leave other things to his lawyer to submit to court.

9. In relation to the accused personal particulars, Mr Kolowe submitted that accused is aged 16 years and was a student at Tiptip Community School when he committed the offence. He is 3rd born in the family of 5 children. He has 3 sisters and 1 brother. Both parents are alive. He is a member of the Lutheran Church.

10. Mr Kolowe submitted and urged the court to consider in accuseds favour the following mitigating factors:

1. That accused has pleaded guilty and saved court’s time and money;

2. That he has expressed genuine remorse;

3. That he is a youthful offender;

4. That he has no prior conviction;

5. That he surrendered to Police;

6. That two of his co-accused are still remanded in custody

7. That the accused conceded that he held a homemade gun and shot the deceased and when victim fell to the ground others came and injured his body using bush knifes.

11. Mr Kolowe submitted that the maximum penalty for this crime is life Imprisonment. He submitted that the maximum penalty is reserved for the worst type of Murder case. He submitted that the court has discretion to impose lower sentences with or without other forms of punishment enumerated under S.19 of the code. He referred the court to the often cited case of Manu Kovi v. The State (2005) SC 789, but did not submit what category his client’s case falls under. He only submitted that the sentence the court should consider is within the range of 10 to 15 years.

12. Mr Thomas of counsel for the state submitted that a sentence between 20 and 30 years is appropriate because of the following factors which I also consider as aggravating and consider them on sentence.

1. The attack on the deceased was a surprise one;

2. The attack was by armed youths;

3. Dangerous weapons namely a homemade gun and bush-knifes were used;

4. Multiple shot gun and bush-knife wounds were inflicted on the deceased body;

5. There was no provocation offered by the deceased to attack him the way they attacked him;

6. It was a cold blooded and senseless killing;

7. An innocent life was lost;

8. That little weight to be given to him as a youth because he did not act like a youth. He acted like an adult and used a shotgun and shot the victim

13. Mr Thomas submitted that no compensation has been paid and there is no evidence that there is peace in the community. He submitted that this is a serious case of murder and a sentence within the range of 10 to 15 years is not appropriate. He submitted that the case falls under third category of Manu Kovi’s case (supra) and attracts a sentence of 20 to 30 years.

14. The maximum penalty for this crime is life imprisonment. The court has discretion to impose lower sentence with or without other forms of punishment enumerated in S.19 of the Code.

15. It is a established principle that the maximum penalty should be reserved for the worst type of Murder case; Goli Golu v. The State [1979] PNGLR 653.

16. It is also an established principle that each case should be considered on its own facts and circumstances, Lawerence Simbe v. The State [1994] PNGLR38.

17. This case is a classic example of a group of young man who without any regard for the deceased well-being and life, attacked him, taking his life in process. That in my view is a total, reckless indifference to human life.

18. The accused displayed careless and cruel attitude and I can only comprehend the deceased experience as unimaginable. Therefore I can conclude that his plea for mercy and leniency are overshadowed by his exhibition of heartless cruelty.

19. This case is one of the many hundreds of cases that come through this courts where the courts have held that sentence that is imposed must be one fitting the crime and must also deter other would be offenders.

20. I consider that the accused is a young man aged 16 years old. His parents are both alive. He is a member of Lutheran Church. He is a person of prior good character and has no prior conviction. He has pleaded guilty and has expressed remorse in court. In determining the appropriate sentence, I take these factors into account in his favour.

21. Against the factors in his favour, I take into account the following aggravating factors:

1. That the attack was by armed youth,

2. That there was use of dangerous weapons namely a shotgun and bush-knives,

3. That multiple shot-gun wound and bush-knife wounds were inflicted on...