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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.902 OF 2014
THE STATE
V
HENRY TODOKOI
(N0.2)
Kavieng: Lenalia, J
2015: 14th, 17th & 20th August
CRIMINAL LAW – Charge – Willful Murder – Sentence after finding of guilty –Criminal Code s.299
CRIMINAL LAW – Sentencing tariffs – Deterrent sentences called for - Maximum penalty reserved for the type cases – Each wilful murder case is determined on its own merits
CRIMINAL LAW – Court's consideration of aggravating factors and extenuating circumstances – On the current case, special aggravating circumstances far outweigh mitigating circumstances – Sentence of 45 years imposed.
Cases cited
Avia Aihi (No.3) v The State [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR, 653
Manu Kovi v The State (2005) SC 789
Steven Loke Ume & Ors-v-The State (2006) SC836
The State-v-Arua Maraga Hariki (2003) N2332
The State v Peter Gilgil Angara, Cr No.1680 of 2006
The State-v-Gregory Kiapkot & 4 Others (2012) N4381
The State-v-Mark Poroli (2004) N2655
The State v Seth Ujan Talil (17.11.2010) N4159
The State v Wilson Okore (6.2.2009) CR No.584 of 2006
Ure Hane -v- The State [1984] PNGLR 105
Counsel:
Mr. R. Luman, for the State
Ms. M. Munure, for the Accused
20th August, 2015
1. LENALIA, J: The prisoner was found guilty on 18th of instant month on one count of wilful murder contrary to s.299 of the Criminal Code. The evidence upon which the prisoner was found guilty is that in the night between 20th and 21st day of September 2012, the victim of this case, Paulo Mulusan from Usil village, of Kara-Nalik got his fishing gears, his torch light and got into his canoe and sailed out to the sea to go fishing. The prisoner comes from Luapul village on the East Coast Road, but he travelled to Usil village a day before committing the crime. It was found that, during the night of the above dates, the prisoner sailed after the deceased in another canoe and went to where the deceased was fishing.
2. The victim dived down into the sea in process of fishing and when he came up to breathe fresh air, the prisoner hit his head with a hard piece of wood and the deceased died. He took him ashore and laid his body on the sand and early morning of the next day, that was 21st September 2012, the wife of the deceased found the body and they buried him.
Addresses by Prisoner
3. The court asked the prisoner to say anything on his last say before hearing his lawyer address the court on penalty, the prisoner said, he wanted to remain silent and his lawyer would speak on his behalf.
Addresses on Sentence by Counsel
4. Mr.Mumure of counsel for the prisoner submitted that the court should consider the fact that, the killing on this case was not a worst type case. Counsel admitted that there are no mitigations to be considered on behalf of the prisoner but said, the court should consider the fact that the circumstances of this case does not warrant the maximum penalty of death. Counsel acknowledged the fact that this case involved a serious killing and the court should sentence the offenders to appropriate term of imprisonment but that the case does not warrant imposition of the death penalty.
5. For the State, Mr. Luman made submission on the seriousness of the killing of an unarmed victim. Counsel submitted that his was a vicious killing and the prisoner's case would fall on the third category of the sentencing tariff enunciated by various Supreme Court decisions including Manu Kovi v The State (2005) SC 789.
Application of Law
6. The maximum penalty for the offence of wilful murder is death. I quote s.299 (1) and (2) of the Criminal Code. It says:
"299. Wilful murder.
(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.
(2) A person who commits wilful murder shall be liable to be sentenced to death."
7. The principle of sentencing in wilful murder cases set by the Supreme Court cases of Goli Golu v The State [1979] PNGLR, 653, Avia Aihi (No.3) v The State [1982] PNGLR. 92 and Ure Hane -v- The State [1984] PNGLR 105 and Manu Kovi v The State (2005) SC 789 is that the maximum penalty should be reserved for the most serious offences under consideration. This means that, the maximum penalty should only be imposed in those cases where they are categorized to be the "worse type case" encountered in practice.
8. The maximum penalty is not automatic: Steven Loke Ume & Ors - v-The State (2006) SC836. According to the decision of appeal by the Supreme Court a sentencing Judge may exercise its sentencing discretion pursuant to s.19 of the Criminal Code but such discretion may not be available where the law expressly provides otherwise.
9. In Manu Kovi v The State (supra) the Supreme Court reviewed the guidelines set in previous cases and set some guidelines to guide Judges on sentencing offenders for the crime of wilful murder and other homicide cases. That case establishes that where a crime of wilful murder is classified as a 'worst type' case the death penalty may be imposed.
10. The maximum penalty may be imposed where it is appropriate to impose according to the facts and circumstances of a case. Where an offender has been through a trial as envisaged by the right to trial and found guilty of wilful murder it does not mean it may attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, among others, aggravating and mitigating factors and extenuating circumstances.
11. Let me now refer to a number of cases in which the Supreme Court consisting of various benches which have set out guidelines for the crime of willful murder. First, I refer to the case of Ure Hane v The State [1984] PNGLR 105, a case in the Supreme Court Bredmeyer, J; set out eight (8) categories of serious wilful murder which can be categorized as worst type killings. They include:
12. In the case of Steven Loke Ume & Ors-v-The State (supra), the Supreme Court comprising of Kapi CJ, Injia, DCJ, Los J, Hinchliffe & Davani JJ set out eight (8) considerations where the maximum penalty can be imposed on wilful murder cases. In the above case the Supreme Court, without being exhaustive, suggested that the death penalty may or can be imposed in the following types of killing situations:
1. The killing of a child, a young or old person, or a person under some disability needing protection.
2. The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.
3. Killing of a leader in government or the community, for political reasons.
4. Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.
5. Killing for hire.
6. Killing of two or more persons in the single act or series of acts.
7. Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.
8. The prisoner has prior conviction(s) for murder offences."
13. The death penalty is not mandatory, but is the maximum penalty that can be imposed. The Court has considerable discretion whether or not to impose the maximum penalty when reading s.229 (2) in conjunction with s.19 (1) (aa) of the Criminal Code: see Steven Loke Ume & Ors-v-The State (2006) SC836. I now cite some cases where the maximum penalty has been given.
14. In The State-v-Arua Maraga Hariki (2003) N2332, Salika, J; (as he then was) imposed the death penalty on an offender who killed two young men with whom he had been drinking with during the night the offences were committed. The prisoner strangled the two deceased by their necks until they died.
15. In The State-v-Mark Poroli (2004) N2655 a case in Mendi, Southern Highlands Province. The prisoner pleaded guilty to willfully killing a policeman on duty. The killing was one of those most serious cases. The incident occurred during the 2002 general elections. There was a shootout between police and the people who gathered for election campaign. The offence took place between Koroba and Tari in the Hela Province. During that shootout, a relative of the prisoner was shot dead. Police tried to escape but they got a punctured tyre and because of the earlier confrontation with the people, the police escort fled on foot. Some of them including the victim spend the cold night in the bushes because it was dark.
16. When the offender and his men found the victim hiding on the hill side. They took him up to the top of a hill on a little cliff. The offender and his men made him stand right on the edge of the cliff. The offender asked the pastor to pray for the victim. After the pastor prayed, they said "Amen" and they opened their eyes. Following that, the offender asked the deceased to say his last prayer and said "Amen". The accused took one or two steps back, less than a meter and fired a bullet shot right into the forehead of the policeman. He died instantly and fell down the cliff to the main road.
17. In The State-v-Gregory Kiapkot & 4 Others (2012) N4381 a multiple wilful murder cases of eight (8) victims who were killed on the sea between Duke of York islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province. The offenders were sentenced to death due to the parts they played in the planning of the killing of those who died on the high seas between Rabaul and Namatanai.
18. There are other wilful murder cases where Judges of this Court have imposed terms of years. For instance, in The State v Seth Ujan Talil (17.11.2010) N4159, Cannings, J imposed a sentence of 40 years for a double murder committed during a mediation proceeding. Seth Ujan Talil was convicted after trial of two counts of wilful murder. The two deceased were brothers ages 35 and 42 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The doctor found that the cause of death in each case was "haemorrhagic shock" due to multiple knife and axe wounds.
19. In The State v Wilson Okore (6.2.2009) CR No.584 of 2006, unreported & unnumbered judgment the same Judge imposed a term of 50 years for the offence of wilful murder. It was a case in Lae where the offender pleaded guilty to the murder of the deceased who was suspected of practicing evil sorcery upon his aunt which caused her to suffer drowsiness and severe headaches. The deceased and the prisoner's aunt were colleagues.
20. In The State v Peter Gilgil Angara, (2009) CR. No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae, the prisoner was found guilty and convicted of the wilful murder of an innocent young man. The deceased in that case was abducted by the prisoner and his accomplices allegedly in retaliation for the death of a young man and cut with bush knives and axes all over his head face and stabbed several times on his chest until he bled to death. The court found the case to be a worse case of wilful murder. It described the killing as "heinous, senseless, brutal, barbaric and cold blooded". The offender was sentenced to life imprisonment.
21. Having considered counsels' addresses on sentence and considering the circumstances of the killing, I agree with the prosecution counsel that, this case falls within category 3 or even 4 on the suggested sentencing tariffs in the case of Manu Kovi v The State case (supra). As earlier mentioned, the maximum penalty is not automatic. The Court may exercise its sentencing discretion under Section 19 of the Criminal Code but such discretion is not available where the law expressly provides otherwise: Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State (supra).
22. The death penalty can be imposed where it is appropriate to impose according to the facts and circumstances of each case. Where an offender has been through a trial as envisage by the right to trial and found guilty, of wilful murder it does not mean or it may not attract the death penalty. The Court has discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, among others, aggravating and extenuating circumstances.
23. On the instant case, I have considered mitigations and aggravating factors put before this Court. I have considered all submissions by the defence counsel and that by the State Prosecutor prosecuting this case.
24. The basic principle that the sanctity and value of a human life is more precious and valuable than wealth must be given prominence. Once a life has been lost, it is forever lost. In homicide cases, it is often said that, life is such that neither wealth, nor money paid in the form of compensation or even any remorse could restore or revive a life that has been lost. I consider the fact that though if the deceased had offended against you or your relatives, he was never brought to any court of law to prove his case.
25. If there were any grudges between you and the victim why not settle amicably rather than taking the law into your own hands. People must know we have a system in place for dispute resolutions. The life of the victim in this case has now been lost for good. He was entitled to the protection of the law envisaged by s.35 of the Constitution. Neither wealth nor anything of this world paid in by way of compensation or even any remorse would assist to restore, revive or resurrect a life that has been lost. Once it is lost, it is lost forever. That is why the parliament thought that the penalty for the crime of wilful murder should be death.
26. Section 35 of the Constitution guarantees life and says that, no person can be deprived of his or her life intentionally except in a case where a person is executed following a sentence by the Court of a case for which the maximum penalty is death or in a case where a person dies as the result of use of reasonable force and Subsection (b) (i) – (v) set out other exceptional circumstances where force is applied and as the result a person dies.
27. Having considered all mitigations and aggravating circumstances of this case and the sentencing tariff set by the Supreme Court in Manu Kovi-v-The State (supra), your case would fall into the third or fourth category in the above case. Considering counsels' submissions on sentence, I consider that this case does not warrant imposition of the death penalty. Instead, a long term of imprisonment should be given.
28. You took a rather vied and suspicious approach in dealing with the deceased's death. You sent a message to the relatives of the deceased for one of them to come to you so you could give a lead to those persons responsible for the planned killing of late Paulo. When witness David Peter from Usil village came to you to find out from you who were responsible for killing the victim, you did not reveal names of those who used your name as "bombom' (set up).
29. The court would describe what you did to the deceased as "senseless, cold-blooded, barbaric and brutal." You revealed your own plan to witness Nelson Bagavut of Kabil village on Central New Ireland as to how you killed Paulo Mulusan. Your action deserves the maximum penalty or near maximum to be imposed. The prisoner is sentence to 45 years imprisonment. The pre-trial custody period shall be deducted and he will serve the balance.
_______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused
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