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State v Mark [2005] PGLawRp 12; [2005] PNGLR 216 (17 June 2005)

[NATIONAL COURT OF JUSTICE]

THE STATE

V

OXCY MARK

LAE: MANUHU AJ

17 June 2005

CRIMINAL LAW – Willful murder – Sentence – Deceased shot at point blank range with homemade pistol – 'Fixed' and 'maximum' penalty – Appropriate test – Extenuating circumstances – Life imprisonment.

Facts

The prisoner was convicted for willfully killing Barry James on 30 January 2003. His sentence is now being determined.

Held

1. All willful murders are the same but the motives vary. Whether there are extenuating circumstances to warrant a sentence less than the death penalty is dependent largely on what the motive is.

2. There is only one mitigating factor and that is the prisoner is a first offender. All other factors are against him.

3. The prisoner is fortunate to have avoided the death penalty. The most appropriate sentence is life imprisonment and the sentence is imposed.

Papua New Guinea cases cited

Goli Golu v The State [1979] PNGLR 653.

Regina v Peter Ivoro [1971-72] PNGLR 374.

State v David Kana Mesu (1999) unreported N1883.

State v Ian Napolean Seteb (1996) unreported N1478.

State v Otomo Onisa Yala & Ors [1995] PNGLR 431.

State v Yakoto Imbuni & Ors (1997) unreported N1558.

Ure Hane v The State [1984] PNGLR 105.

Counsel

R Gankarch, for the State.
V Henry, for the accused.

17 June 2005

Manuhu aj. The prisoner, Oxcy Mark, of Sambio, Mumeng, Morobe Province, was convicted for willfully killing Barry James, also of Sambio, on 30 January 2003. I must now determine his sentence.

The deceased and his family lived in a house which was beside a hill outside of Sambio Village. On the same hill there were two other houses. The three houses were about a kilometer apart. On the 30 January, the deceased and his family were at their house when he decided to go to the nearby river. When he had left, the prisoner went to his house at about 3.00pm. The prisoner was then wearing a blue waist belt and was in possession of a home-made pistol. The prisoner ran passed the house and up the hill, and asked the deceased person's wife as to the whereabouts of the deceased. The prisoner left when he was told that the deceased had gone to the river.

When the deceased arrived at the house later that day, he was told by his wife that the prisoner had been looking for him. The deceased was, therefore, expecting the prisoner to return that evening. The deceased and his wife waited for the prisoner but he did not arrive. The wife gave up, took her baby and prepared to go to bed. The deceased followed soon after. While inside the house, the deceased vomited and became ill. The wife made a fire on the verandah and the deceased sat beside it to warm himself. The wife returned to the room to change her child's nappies when, at about 10.00pm, she heard a gunshot from the verandah.

The wife was naturally very scared and she urinated. She knew that her husband was on the verandah so she opened the door to investigate. At that instant, the prisoner, who had shot the deceased from point blank range, held the pistol against the wife and ordered the wife to show him where the M16 firearm was. The wife knew that it was the prisoner because there was sufficient light from the fire she had just made and she recognized the voice. They knew each other. The wife told the prisoner that the only firearm in the house was a Winchester rifle. She took it and gave it to the prisoner. The prisoner did not believe the wife so he searched the house but found nothing of interest. Before he left, he told the wife to leave for the main village. The prisoner then disappeared from the scene.

The deceased died nearly instantly. The wife attended to the deceased as soon as the prisoner left but the deceased was already dead. The bullet penetrated his body from the right side of the chest all the way to the left shoulder.

The news of the killing and, in particular, that Oxcy Mark had killed Barry James spread very quickly the next day. Police acted nearly immediately and apprehended the prisoner on the said day. At the time of apprehension, the murder weapon, an empty cartridge, an unused cartridge and the Winchester rifle were still in the prisoner's possession.

The motive for the killing is only known to the prisoner. It seems that there was no animosity between the prisoner and the deceased immediately before the killing. However, his actions after the killing suggest thtat the prisoner believed tht the deceased had an M16 firearm and he wanted it. The prisoner had also made admissions to policemen where he claimed that the deceased used to prevent his wife from seeing him. However, no evidence was adduced on whether the prisoner was married and whether he had any martial problem.

The crime of willful murder and the penalty for it is prescribed under s299(2). Under subs(2) a person convicted of willful murder "shall be liable to be sentenced to death." The death penalty is clearly a mandatory penalty for obvious reasons. Initially, upon independence in 1975, the Criminal Code had the death penalty for the crime of willful murder. That penalty was subsequently repealed by an amendment by the Criminal Code (Amendment) Act 1976. However, due to escalating law and order problems and widespread crimes of violence, the lawmakers reintroduced the death penalty. Section 299(2) was repealed and replaced by s2 of the Criminal Code (Amendment) Act 1991. In State v David Kana Mesu, (Unreported) 1999, N1883, therefore, his Honour Kirriwom J said:

"This Court is mandatd by law to impose sntence of death which means under the law he can be hanged by his neck until he is dead. The crime of willful murder carries this most severe penalty because the people of this country, through their Parliament, have expressed their desire for this punishment."

The death penalty is, therefore, not only a mandatory penalty but a penalty that our own legislature, against our Christian background, has determined that it is the most appropriate penalty for the crime of wilful murder.

In addition, while there is discretion to impose a lesser sentence under s19(1)(aa), as a mandatory penalty, consideration of all sentences for willful murder must begin with the death penalty. In other words, unlike other penalty provisions, the death penalty is not the maximum but a 'fixed' penalty. This distinction is illustrated by Kearney, J. in Goli Golu v The State,[1979] PNGLR 653, at a time when the death penalty had not been reintroduced, as follows:

"Wilful murder has always been regarded as one of the most intrinsically serious of all offences. That is why, in most jurisdictions, it carries a fixed penalty; sometimes death, frequently life imprisonment. Under our Code it does not carry a fixed penalty; there is a maximum penalty of life imprisonment."

Consistently, in Regina v Peter Ivoro, [1971-72] PNGLR 374 which case was detemined when the death penalty was previously in force, in sentencing a prisoner convicted of willful murder, it has to be established whether there are "extenuating circumstances sich that it would not be just to inflict the punishment of death". There has to be "the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, but broadly, regard being had not only to moral considerations, but to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted."

This approach was followed in, among others, The State v David Kana Mesu, (Unreported) 1999, N1883, and State v Yakoto Imbuni & Ors, (unreported), 1997 N1558, Akuram J. I adopted the same approach in the case of the State v Pitaneo. I will do likewise in this case.

Having said that, in recent times, reasons that have operated for or against imposition of death penalty include, among others, absence of such submission by the State, undesirability of a prisoner becoming a scapegoat for others in a group attach, prevalence of the crime, the law and order situation, vicious nature of attack, innocent victims, and worse case scenario. See for instane Ure Hane v The State, Goli Golu v The State, State v David Kana Mesu, State v Yakoto Imbuni & Ors, State v Ian Napolean Seteb, State v Eliesa Kopeia Madiroto, and The State v Otama Onisa Yala.

With guidance from the cases I have just referred to, I must now determine whether there are any extenuating circumstances such that it would not be just to inflict the punishment of death upon each of the prisoner.

The prisoner is 30 years old. He is the eldest of a family of three children. The prisoner is married and has an adopted daughter who is about three years. The prisoner is aligned with the Seventh Day Adventist mission. He was educated up to Grade 4. He is a subsistence farmer. He had been in remand for more than two years.

The only mitigating factor in this case is that the prisoner is a first time offender. I cannot think of anything else that will mitigate the prisoner's sentence.

On the other hand, the crime of willful murder and crimes of violence are prevalent in the country. The people of this country have had enough of violent crimes and have repeatedly called for tougher sentences to be imposed. At present, the number of pending cases in Lae is the highest in the country. This means that deterrent sentences must be imposed right here.

The deceased was a young man of 22 years. If Papua New Guineans can live up to 60 years, it means that a total of 38 years or more have been taken away from the deceased. In addition to that, a woman has been left without a husband and a child has been left without father.

The deceased was shot at point blank for no valid reason. It is suggested that the deceased prevented the prisoner's wife from seeing him but on the day in question the deceased was expecting the prisoner in good faith. They appear to be close associates. It is, however clear that the prisoner shot the deceased because the prisoner wanted his firearm. This is not a valid reason for gunning down a sick and defenceless person.

The prisoner was closely associated with the deceased and his family but he showed no remorse and fear after shooting the deceased. He also held the homemade pistol against the wife and in the process threatened her. The prisoner then searched the house and left with a Winchester rifle. Why did the prisoner want the firearm? There is evidence that the prisoner had been involved in other criminal activities in the Mumeng and Bulolo. Was he collecting weapons to commit further offences? That is the impression I have, which means that the prisoner is a dangerous person. He poses a serious threat to the community.

Everything I have said so far goes agains the prisoner. In other words, I have not yet found any extenuating circumstance that will assist him to avoid the death penalty. It is, therefore, open to the court to impose the death penalty as requested by the prosecution. However, I am of the view that this case probably does not fit into the worse case scenario. In addition, the shooting may not be regarded as vicious. My view, however, is that all wilful murders are the same but the motives vary. And, whether there are extenuating circumstances to warrant a sentence less than the death penalty is dependent largely on what the motive is. In this case, for instance, the reason for the killing is not supportd by any moral, ethial or cultural value. Nonetheless, I will give the prisoner the benefit of doubt. I will not impose the death penalty.

I must then consider whether I should impose life or a determinate sentence upon the prisoner. I take into account that there is only one mitigating factor, that the prisoner is a first offender. All the other factors are against him. In addition, it is apparent from what I have just stated tht the prisoner is fortunate to hav avoided the death penalty. In all the circumstances, the most appropriate sentence is life imprisonment and I impose that sentence.

Sentence accordingly.

Lawyer for the State: Public Prosecutor.
Lawyer for the prisoner: Paraka Lawyers.