State v Sapu [2012] PGNC 290; N4533 (20 February 2012)

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CRIMINAL LAW Indictable offence-Decision on sentence- wilful murder-prisoner actively participated in the brutal murder and rape of old woman- it was a payback attack - Victim a harmless old innocent woman- Killing was a senseless, and cold blooded spite filled murder - Killing described as one of the worst killing in the Talasea area of West New Britain Province - Sentencing principles in homicide cases considered –criminal liability of prisoner rose by virtue of prisoner's active participation in killing of deceased- criminal responsibility arose by virtue of section 7 Criminal Code - Co-offenders sentenced to imprisonment for life by Supreme Court- Principle of parity of sentencing requires sentence of life imprisonment

The accused was indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code. His criminal responsibility arose by virtue of section 7 of the Criminal Code. The State proved beyond reasonable doubt to show that on the day in question a group of men in the Talasea area had set out to a nearby village to avenge the death of a young man from their village. They left behind a trail of destruction as they set out to hunt for the murderer and his relatives. They arrived at the village of the deceased and caused a lot of destruction. Houses were burnt down and domesticated animals were slaughtered mercilessly. Fruit and other economic trees were cut down with the inhabitants fleeing to safety. The deceased was among the persons who were fleeing to safety in all directions when she was stopped dead in her tracks by the prisoner who dragged her to a spot where the retaliating warriors had congregated. The deceased was dragged to that spot by the prisoner with the help of a co-accused, now serving life sentence in jail. There the warriors in a revengeful attack assaulted her using sticks and bush knives. She was tortured and other forms of torture and inhuman acts were perpetrated upon her. She was than brutally raped in broad day light. She was then bludgeoned to die a very slow and painful death full of excruciating pain. Her skull was clubbed open by the warriors who then caused the brain matter to spill and spread everywhere. The prisoner's three co-accused were initially sentenced to death. But on appeal the Supreme Court reduced their death penalty sentence to sentences for life. On the prisoner's sentence:

(3) This was a cold blooded spiteful barbaric group attack on an innocent harmless women. As such it was very difficult to identify any individual perpetrator and the specific role such person played in the brutal rape and senseless murder of the deceased. Notwithstanding this, the gravity of the crime itself warrants the same sentence of life imprisonment to be imposed upon the prisoner.

Peter Allan Utieng –v- The State SCR 15 of 2000
Steven Loke Ume, Greg Wava, and Charles Patrick Kaona -v- The State [2006] SC836
Goli Golu –v– The State [1979] PNGLR 563
The State –v- Tom Keroi Girua & ors [2002] N2312
MacPherson v The Queen [2002] WASCA 287
John Elipa Kalabus –v- The State [1988] PNGLR 193
William Ukukul Gimble v The State [1988-89] PNGLR 271
Winugini Urugitaru v The Queen [1974] PNGLR 283; 653
Andrew Uramani & Ors v The State [1996] PNGLR 287
The State –v–Laura (No. 2) [1988-1989] PNGLR 98,
Lawrence Simbe –v– The State [1994] PNGLR 33
The State v Tony Pandau Hahuahoru [No.1] [2002] N2185
The State –v- Naetemo Wanu [1977] PNGLR 152,

1. KAWI, J: Francis Waka Sapu was charged with one count of wilful murder of one Agnes Banovo on the 3rd December 1995 at Pangalu village, Talasea, in the West New Britain Province contrary to section 299 (1) of the Criminal Code. On arraignment the accused pleaded not guilty to the charge of wilful murder and the trial commenced with the prosecution calling a number of witnesses to give evidence. He was subsequently found guilty and convicted for wilful murder under section 299(1). Here is my judgement on his sentence.

2. In computing an appropriate sentence, it must be noted from the outset that sentencing is not an exact mathematical science where fixed formulas are applied to find fixed solutions to problems. Rather sentencing is a discretionary process guided by several legal principles to achieve one or more objectives of sentencing. To arrive at these objectives, some of the sentencing principles I will follow here are the following:

c) I will take into account the mitigating factors and aggravating factors operating for and against the accused.

d) The submissions of both the defence and prosecution counsels are taken into account.

e) I will also take into account sentencing guidelines and sentencing tariffs in homicide cases especially decisions of the National and Supreme Courts.

g) Consideration is then given to whether part or the whole head sentence should be suspended or not.

3. I will now consider the issue of whether this case can be classified as falling into the category of worst cases. During the trial of this case the facts and evidence revealed that the deceased Agnes Banovo was a defenceless and innocent woman who was fleeing from the scene of a payback attack perpetrated by warriors intent on avenging the death of Francis Reu. As the deceased was fleeing from the warriors, she was stopped by the prisoner and with the assistance of another warrior, Greg Wava (now serving a term of life sentence for the brutal rape and murder of Agnes Banovo), dragged the deceased to the spot where she was brutally raped and viciously and senselessly murdered. The deceased was assaulted by the warriors using their bare fists, as well as sticks, and knives. She was like a sheep amongst a hungry pack of ferocious wolves who were devouring every flesh and bone of the deceased. In the midst of all these gruesome attacks, the deceased was brutally raped and the torture continued. Eventually she was murdered with her skull bludgeoned and opened up. The brain matter was spilled out everywhere. In such circumstances I classify this case as one of the worst payback killings ever committed in the Talasea area of the West New Britain Province. This killing is therefore classified into the category of worst cases and the prisoner who took an active part in the killing, had a blatant disregard for the sanctity and sacredness of human life and is therefore branded as a worst offender.

4. In my view whilst this is a one off killing, the method employed to kill the deceased can be best described as ferocious, barbaric, senseless and cold blooded. A dangerous lethal weapon, was used to attack a defenseless and harmless innocent old woman shows clearly that you cared little for the sanctity and sacredness of human life. During this ordeal she was crying and pleading to her attackers to kill her quickly so she could not experience the excruciating pains. Despite her pleas for mercy she was made to die a slow painful death. To speed up her death her skull was bludgeoned with a solid object, most probably with a piece of wood and her brain matter spilled out and spread all over the place. For this reason alone, while you may not have played an active role in this rape and murder, I will still classify you as a person who is dangerous and high risk person to your community. You are a worst offender. The fact that I have now categorized this case as falling under the worst case category does not in my view automatically mean that the maximum sentence prescribed by Parliament, that is life imprisonment, will automatically be imposed.

6. When the allocutus was administered upon you, the prisoner apologized for his actions. He asked the court for mercy and leniency in sentencing him. He asked the court to consider his family which is a young family. He said that he was only about thirty years old and his wife is about the same age group as himself. He told the Court to consider the plight of his wife, who will not only tend to the needs of his children, but also bear the added responsibility of looking after his three oil palm blocks which he said was a very heavy burden without the presence of himself at the family home.

7. While I accept the apologies offered by the prisoner, I bear in mind what the Supreme Court said in the case of Peter Allan Utieng –v- The State SCR 15 of 2000. In that case the court said that saying sorry is not enough. It must be accompanied by tangible things such as payment of compensation to the family of the deceased. While it is customary to pay compensation as a mark of saying sorry for the wrong done, and also to build a harmonious relationship between warring communities, in the present case no form of compensation was ever attempted. It must be noted too that the expression of remorse and contrition and the pleadings for leniency, does not necessarily result in a reduction of sentence. In my view it is the gravity of the offence as in the case here, which will override any considerations based on expression of remorse and contrition.

8. The learned State Prosecutor informed the Court that the State does not allege any prior convictions against the prisoner. This simply means that the prisoner has never been in conflict with the law before and has never been before a court of law before the commission of this offence.

9. The Supreme Court in the related case of Steven Loke Ume Case, described mitigating factors in this way:

"As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender, guilty plea, early confession to police, remorse, poor health and restitution or compensation".

"there is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances, relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences as with all serious crimes of violence, the gravity of the offence determined in light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant".

13. Mr. Mokae for the prisoner argued that the State failed to establish evidence showing the degree of the prisoner's culpability in the rape and murder of the old woman. In other words, their sentence is to be determined according to their degree of participation in the crime. This Submission is not without merit. The decision of Kirriwom J in The State –v- Tom Keroi Girua & ors appear to support the submissions by the learned defence counsel. Mr Rangan for the State on the other hand argued that the Supreme Court itself in the appeal of Steven Loke Ume, Greg Wava, Charles Patrick Kaona –v- The State did not make a decision to differentiate the individual roles played by the appellants when it sentenced all three to serve their life imprisonment sentences. He urged the court to take the same approach here arguing that this prisoner was an active participant in the same crime like the others. I find the submissions by Mr. Rangan to have a lot of merit. First I accept that there was no differentiation in the roles played by the three appellants and the present prisoner. In my view the prisoner and the other three already serving their life prison terms are equally guilty because without each playing his part in the commission of the crime, the crime could not have been successfully perpetrated. In that regard I find that the deceased had already fled to safety when she was stopped in her tracks by the prisoner Francis Waka Sapu and dragged back to her assailants. This shows that the Prisoner played a very active part and a major role in her subsequent rape and murder. I further find that without the prisoner playing his part the rape and death of the deceased would not have eventuated.

A passage from the Supreme Court decision in William Ukukul Gimble v The State [1988-89] PNGLR 271 at 273 support this approach. There the Supreme Court said:

"The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated".

14. In a further Supreme Court decision in Steven Loke Ume, Greg Wava, and Charles Patrick Kaona -v- The State [2006] SC836 the court said:

"This was a bad revenge killing of an innocent and harmless woman who did no wrong. She was tortured and made to die a slow and painful death. These factors clearly call for a stern punishment. The weight to be attached to any extenuating circumstances or mitigating factors is significantly reduced by the gravity of the offence. There is no question that these appellants were involved with the group that attacked the deceased with a common intention of killing her. There is no evidence to differentiate the role played by each appellant in the killing. We would impose the same sentence on each appellant. We consider that the seriousness of the killing warrants a sentence of imprisonment for life".

15. In my view the same considerations should apply here. Here was a large group attack by tribal warriors, making it very difficult to identify each individual perpetrator involved and the role he played each in the rape and murder of the deceased. Needless to say, the gravity of the crime warrants the same sentence to be imposed upon all offenders.

16. Mr Mokae for the prisoner made strong submissions and invited the court to look at the role played by the prisoner in the commission of this heinous crime. He submitted that the prosecution failed to produce evidence to show that the prisoner played an active role in the rape and vicious killing of the deceased. The evidence as it stands fails to show the prisoner as the mastermind behind this spiteful killing or even the revenge attack. It was submitted that the prisoner did not play a significant role in assaulting the deceased, raping her and viciously killing her. He submitted that the fact that the prisoner was seen near her attackers does not necessarily mean that he played a significant role in her rape and senseless killing.

17. It was further submitted that neither was this a premeditated killing nor was there some pre-planning on the part of the accused. Based on these factors, he referred to the various categories of sentencing in homicide cases as reflected in the Supreme Court decision in Manu Kovi –v– The State (2005) SC 789. He submitted that this case would clearly fall within the first category of Manu Kovi, and urged the court to impose a sentence of 15 years minus the time spent in custody.

18. Mr. Rangan for the State on the other hand submitted that there is evidence to show that the prisoner was assisted by a Greg Wava to drag the deceased to the army of warriors who assaulted and tortured the deceased to a point where she was raped and murdered. He submitted that this cannot be described as a case of innocent by stander. He submitted that the prisoner was a principal offender within the meaning of section 7(1)(c)of the Criminal Code.

19. As such the prisoner should be made to account for his actions. He referred to the related case of Steven Loke Ume, Greg Wava, and Patrick Kaona (supra) and submitted that had it not been for the trio serving life imprisonment, he would have submitted for the death sentence to be imposed upon this prisoner. It has been stated that to come within section 7(1)(c) intentional encouragement of the crime is sufficient whether by word or action or even mere presence. The State –v-Naetemo Wanu [1977] PNGLR 152, also Davies –v-DPP [1954] 2 WLR 343.

a) The deceased died a slow painful death full of excruciating pain. Before her death she suffered various forms of human indignities, including being brutally gang raped by a bunch of cowards acting as tribal warriors in broad daylight.

b)The weight to be attached to any mitigating factors is significantly reduced by the gravity of the offence.

c) There is no evidence to differentiate the roles played by the prisoner and the other prisoners already serving their life imprisonment sentences, namely Steven Loke Ume, Greg Wava, and Charles Kaona in this killing

21. The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle.

22. The pre –Independence Supreme Court in Winiguni Urigitaru –v-The Queen [1974] PNGLR 283 described the parity principle in this way:

"It is, of course, accepted that the court is justified in the treatment of persons for the same crime, if in considering the public interests, it has regard to the differences in the characters and antecedents of convicted men, and discriminates between them because of these differences. R-v- Ball (1951) 35 Cr APP R 164 at page 164 per Hibbery J. The court may also have regard to factors connected with the actual commission of the crime. But the fact that one of several prisoners jointly indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on others. What generally has to be shown is that the applicant on appeal has received too long a sentence. R-v- Richards (1955) 39 Crim App R 191 at 192 per Lord Goddard. But as it also appears from that case if there is a considerable disparity between the sentences, an appellate court may take it into account".

23. Kirriwom J in the National Court case of The State-v- Tom Keroi Gurua, David Laiam Bawai, and Joseph Dimagi [2000] N2312 did not follow that Supreme Court opinion. His Honour's approach was that where two or more persons are charged for the same offence, their sentence is determined according to their level of criminal responsibility. His Honour said:

"The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle and the passage in Gimble's case needs to be clarified. There is no doubt that it applies more appropriately to the issue of guilt or innocence but not so in sentence. A grave injustice could result".

24. Steven Loke Ume, Greg Wava, and Charles Kaona were tried in 1997 for this same killing by Justice Sir Robert Woods. The men were convicted and sentenced to death. On appeal against their conviction and sentence, the Supreme Court confirmed the conviction but allowed the appeal against sentence. The death sentence was reduced to one of life imprisonment for the three co – accused. The effect of the totality principle dictates that the prisoner must be given the same kind of prison sentences imposed upon the other co-offenders.

25. Does this mean that I should impose the maximum sentence of life imprisonment? In the case of The State v Tony Pandau Hahuahoru,(N0.2) [2002] N2186 Kandakasi J referred to the parity principle and the following remarks made by the trial judge are worthy of noting, as they seem to correctly reflect the law. After referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653 and Andrew Uramani & Ors v The State [1996] PNGLR 287 Kandakasi, J concludes:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognizes that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance".

26. A further approval and acceptance of this principle is found in another West Australian Court of Criminal Appeal decision of MacPherson v The Queen [2002] WASCA 287 (October 22, 2002) delivered by Parker, J. His Honour refers to the same passage I have quoted from Postiglione v The Queen [1997]189 CLR 295 and further discusses the totality principle, which often in sentences involving two or more offenders charged with multiple counts piggybacks or vice versa with the parity or disparity issue. But in this case this is not so.

27. The parity principle discussed in those cases explain the justification for there being differences in sentences of offenders of the same criminal enterprise, irrespective of what the crime might be or how serious or trivial such case may be.

28. A different result however was reached in Goli Golu v. The State [1979] PNGLR 653. There the Supreme Court rejected an argument for a reduction of appellant's sentence on the parity principle. The appellant received a sentence of life imprisonment and his co-accused received an effective sentence of 10 years. The Supreme Court per Justice Raine DCJ (as he then was), found that, although the person receiving the effective 10 years was an active participant in a willful murder case, he did not use the weapon he was armed with despite having every opportunity to use it. In so doing, His Honour noted that there could be situations where there might well be a feeling of dissatisfaction but that could not automatically mean that the sentence must be reduced.

29. In sentencing an offender, judges often consider and are usually guided by the objectives of sentencing and the effect such objectives would have upon an offender. The primary objectives in sentences are usually deterrence rehabilitation, restitution, and retribution. In serious indictable offences, the objectives most often considered are deterrence and rehabilitation or reformation. In John Elipa Kalabus –v- The State [1988] PNGLR 193, the Supreme Court was considering an appeal against a life imprisonment sentence imposed by the National Court. In considering the ground that the trial judge erred in not considering that the sentencing objectives of rehabilitation of the offender, Kidu CJ made the following pertinent comments:

"There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes".

30. The maximum penalty for murder is the death sentence as prescribed by Section 299(2). This is however subject to the sentencing discretion vested upon the court by Section 19 of the Criminal Code.

It is now a well settled principle of law that the courts will only consider imposing the maximum penalty for those cases categorized as falling in the "worst offence" category, and the offenders being classified as worst offenders or high risk offenders. (See Goli Golu –v–The State [1979] PNGLR 563). Here I have already classified this case as belonging to the worst category of cases. But just because I have classified a case as belonging to the worst category does not mean that the maximum penalty of the death sentence should automatically be imposed. Whether the prescribed maximum sentence will be imposed or not depends in my view on the gravity of the offence.

31. The sentencing tariffs for homicide cases were set out in the oft quoted Supreme Court decision in the case of Manu Kovi –v– The State (2005) SC789 (per Injia DCJ, Lenalia and Lay JJ). The tariffs were listed as follows:

CATEGORY	SENTENCING RANGE
Category 1	12 – 15 years
Plea	No weapons used
Ordinary Cases	Little or no pre-planning
Mitigating factors with no aggravating factors	Minimum force used
	Absence of strong intent to do GBH

CATEGORY	SENTENCING RANGE
Category 2	16 – 20 years
Trial	No strong intent to do GBH
Mitigating factors with no aggravating factors	Weapons used Some pre-planning
	Some element of viciousness

CATEGORY	SENTENCING RANGE
Category 3	20 – 30 years
Trial or plea	Preplanned vicious attack Strong desire to do GBH
Special aggravating factors Mitigating factors reduced weight or rendered insignificant by the gravity of the offence	Dangerous or offensive weapons used. e.g. gun or ax used. Other offences of violence committed

CATEGORY 4	SENTENCING RANGE
Worst Case	Life Imprisonment
Trial or plea Special aggravating factors. No extenuating circumstances. No mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence.	Pre meditated attack. Brutal killing in cold blood. Killing of innocent, harmless person. Killing in the cause of offence. Complete disregard for human life

32. Going by these sentencing guidelines your case falls easily into the first category which would attract a sentence in the range of 12-15 years. The Supreme Court has emphasized that life imprisonment for murder is the starting point, when the court has to work out what the appropriate sentence is. Only when a person has pleaded guilty and there are no factors in aggravation should a sentence of the magnitude suggested by Mr Mokae – around 15 years – will be considered.

33. Here I have already found that there are serious factors in aggravation which I simply cannot just ignore. Also the prisoner never pleaded guilty. He put the State to task to prove its case and the State has just done that. Taking all these into account I am not satisfied that a sentence in the range of 12-15 years is warranted in your case here.

34. The Supreme Court is clearly saying that the National Court must impose longer sentences than it has in the previous years. This will underline the gravity of the crime of wilful murder and provide a deterrent to the commission of such serious crimes to other offenders and would be offenders.

35. Another useful sentencing guideline in homicide cases has been laid down by The Supreme Court in The State –v–Laura (No. 2) [1988-1989] PNGLR 98, and subsequently in Lawrence Simbe –v– The State [1994] PNGLR 33.

Of course where there are some very good mitigating factors, such as a very young offender persuaded by other more older persons to commit, that may warrant a sentence lower than any of the tariffs suggested above.

The Supreme Court made it clear that these suggested tariffs are guide lines only and not a conclusive set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

37. Going by these sentencing guidelines set by the cases of Laura (No 2) and Lawrence Simbe your case clearly falls within category (e) which would attract a penalty of twenty-two (22) years to forty (40) years.

38. Still another very useful sentencing guidelines were set by the Supreme court in the case of Simon Kama –v– The State (2004) SC 740. These guidelines are as follows:

39. Going by these guidelines, your case would easily fall within the category (e) which would attract a sentencing range from twenty-two (22) years to forty (40) years. This sentencing range of 22 to 40 years is very consistent with the range of sentences fixed in Laura No. 2 case and Lawrence Simbe's case.

40. In your case I will apply the guidelines suggested by the Supreme Court in Laura No. 2, Lawrence Simbe, Simon Kama and Manu Kovi. I apply those guidelines as follows:

41. These factors sufficiently put this case squarely within the fourth category of sentencing in Manu Kovi. The fourth category in Manu Kovi prescribes the life imprisonment sentence. Going by those guidelines, and taking into account the principle of parity of sentencing, I consider and recognize that equal justice requires that as between co-offenders that there should not be a marked disparity in their sentences which gives rise to a justifiable sense of grievance. To avoid that feeling of grievance I would fix a sentence of life year imprisonment upon you as appropriate to serve as a deterrent sentence for you and a warning to other offenders and would be offenders. I would issue a warrant of commitment for you to be issued in those terms.
__________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Prisoner

National Court of Papua New Guinea

State v Sapu [2012] PGNC 290; N4533 (20 February 2012)