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State v Madiroto [1997] PGNC 210; [1997] PNGLR 95 (20 March 1997)

[1997] PNGLR 95

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ELIESA KOPEIA MADIROTO

ALOTAU: SEVUA J
14, 20 March 1997

Facts

The accused was found guilty of wilful murder under s 299 of the Criminal Code. It was established that the deceased, a defenceless old woman died after a series of brutal assaults on her by the accused. The Judge had to consider the appropriate sentence to impose on the accused.

Held

1. The deceased was a defenceless old woman who died a vicious death at the hands of the accused. The penalty should be death.
   
2. Since the prosecution has not asked for the death penalty and as the defence has submitted against the death penalty, life imprisonment is appropriate in the circumstances.
   

Cases cited

Goli Golu v The State [1979] PNGLR 653.

Ure Hane v The State [1984] PNGLR 105.

Counsel

C Manek, for State.
P Tusais, for accused.

20 March 1997

SEVUA J. You have pleaded guilty to a charge that on 11th June 1996 at Gadovisu village, Rabaraba District, Milne Bay Province, you wilfully murdered Besi Wagus.

The facts, which you admitted, were these: Between 5:00 pm and 6:00 pm that day, you were cooking bananas near your mother’s garden. The deceased approached you and said something to the effect that, you should not be cooking bananas there, as it was not your area. She then left for her garden house. Then approximately at 10:00 o’clock in the night, you went to the deceased’s garden house with the intention of burning her with her house. When you reached her, however, you didn’t carry out your intention. Instead, you dragged her out of her house by her hands and then burnt her house.

You then commenced to assault the deceased with your hands. Later you dragged her to a nearby creek and threw her face down against the stones with her forehead hitting the stones. After that, you took stones from the creek and began stoning the deceased on her head. Later you squeezed her throat and at the same time pushed her head into the water in the creek. You kept her head inside the water until she died before you released her.

There was being no doubt in anyone’s mind that this was a very serious case of wilful murder. From the outset, let me make it clear to you, that I take the most serious view of this case, particularly the manner in which you carried out the repeated assaults against the deceased leading to her death, a death, if I may add, she did not deserve.

You are approximately 25 years old and married with a child. You have been a villager since leaving school at the completion of Grade 6. You have a prior conviction for break, enter and stealing in which you were sentenced to one year eight months imprisonment. Apart from these personal antecedent matters, your counsel has also submitted that the Court considers the following matters in mitigation: your plea of guilty and your co-operation with police investigations by readily admitting your guilt; compensation in the sum of K500.00, plus two pigs paid and peace restored; your unsophistication and that you come from a backward area of this province; remorse; and, your prior conviction is not related to this crime, although it has potential for violence.

Since this case involves the imposition of the death penalty, your counsel has referred me to two cases; Goli Golu v The State [1979] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105 and adopted the rulings therein, that in dealing with wilful murder, the maximum penalty should be reserved for the most serious cases. I will revert to this submission later.

At this juncture, let me address the reason for killing the deceased. You have referred to a land dispute as the cause of this intentional homicide. You said that there was a land dispute, which was subsequently resolved in your favour. After you discovered the deceased had uprooted your betelnut seedlings, you became angry and decided to kill her. This was referred to in your allocutus.

Since this case involves the death penalty and as I felt that you were revealing your reason for the first time before me, I thought it was important to get more information on this aspect. Therefore, I directed counsels to obtain full instructions and if necessary file affidavits. Both counsels have done this. I have perused all the affidavits filed herein. I do not wish to deal with this aspect in any great length, so I will try to be brief.

Your own affidavit filed on 18th March 1997, corroborated your statement in allocutus in relation to the destruction of betelnut seedlings and the land dispute. What you said, however, both in allocutus and in your affidavit, have been refuted by a number of people, one of whom is your uncle, Newman Suweia. He said in his affidavit that there was never a land dispute between yourself and the deceased. He also said that you did not have a betelnut garden or plantation. You were always running away from Village Court officials, including the village police. He further said that there was no compensation paid at all.

The investigating officer, Kingsford Isari in his affidavit, confirmed what your uncle has deposed to in his affidavit. This is supported by the deceased’s two children, Terence and Sandra Gonobuyawa, who have also filed affidavits on this issue.

This affidavit evidence makes it quite difficult for me to accept the reason you advanced for killing the deceased. One other reason I find it hard to believe you is that, you did not mention this when police interviewed you on 29th July 1996. Even when given the opportunity to speak in the committal Court, you did not raise it. I am left with the conclusion that this story is of recent invention. In any case, it does not exonerate you from criminal culpability.

Before I return to counsel’s submission on sentence, let me quote some of what you told the police investigator when interviewed. I consider it important because, at the end of the day, it would reflect the enormity of the crime you committed and the commitment made for the perpetration of this crime.

You said, "Between 5 and 6 pm, she came and got angry with me, this is your place so you came burning bananas. I was very angry. I was very angry when I heard this and I murdered her. I went to my garden house and stayed there, but kept thinking of what this old lady said and it made me angrier so I went back and murdered her. At about 10 pm in the evening, I started walking to her garden house."

From question 22, you said the following; "She was just sitting down in the house so I thought of burning her whilst she was in the house together with the garden house, but I just went in and dragged her by the hand and pulled her out of the house and I later burnt down the house. I held her by one hand and burnt the garden house. After burning the house, I started belting the old lady (Besi Wagus) with my hand and later pulled her down to the creek. I threw her down to the stones and she bumped her forehead on the stones and I further took stones from the creek and kept stoning her on her head and later held her by the throat squeezing it, at the same time to suffocate her, pushed her head into the pool of water and held it until she died."

You conducted a litany of terror against this helpless and defenceless old woman. There is no doubt in my mind that you committed a vicious crime. You took the law into your own hands and administered your own justice. In my view, if the death penalty is not imposed, life sentence should be imposed, as I consider it appropriate for this very grave crime. The manner in which you carried out a series of grievous assaults against the deceased does not entitle you to any leniency. Frankly, I think, the enormity of this crime outweighs your plea of guilty and expression of remorse.

In revisiting counsel’s submission on sentence with particular reference to the cases he has cited, I wish to say that, the maximum penalty for wilful murder then was life imprisonment, but this was at the discretion of Judges. The mandatory life sentence for wilful murder had been abolished in 1976 by an amendment to s 309 of the Code, now, s 299. Of course, the maximum penalty for wilful murder now is death, following an amendment to s 299 in 1991.

In the case of Ure Hane, Bredmeyer, J categorised different types of the more serious cases of wilful murder. With respect, however these have changed since this decision was made some thirteen years ago. There are now, in my view, certain classes of wilful murder that fall into the most serious categories of wilful murder that are not mentioned in that judgment. I consider therefore that, that decision needs to be reviewed in the light of some of the most serious homicides occurring in the country recently and at the present time.

I consider that all wilful murder cases are very serious because they involve intention or are intentional homicides. In the present case, there is no doubt about the prisoner’s intention. He tried to raise de facto provocation. There had been a time lapse of four to five hours from the alleged de facto provocation, before he set out in a murderous rage to kill the deceased. His intention was manifested in the manner in which he brutally attacked the deceased, which in my view warrants the maximum death penalty, if not life imprisonment.

I have seriously considered imposing the death penalty in this case. Initially, I thought I should further adjourn this matter for a few more months so I could have more time to consider and evaluate whether the death sentence should be passed. The prisoner however has already been convicted and is entitled to a pronouncement of sentence without further delays. His counsel has urged the Court not to impose the death penalty and the State has not demanded it. I have considered all these and other matters I have not referred to in my reasons.

In all the circumstances, the judgment of this Court is that, the prisoner, Eliesa Kopeia Madiroto, is sentenced to imprisonment with hard labour for life.

Lawyer for State: Public Prosecutor.
Lawyer for Accused: Acting Public Solicitor.