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State v Lako [2016] PGNC 14; N6182 (12 February 2016)

N6182


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 1233 OF 2013 &
CR 1234 OF 2013


Between:


THE STATE


And:


ERIC NAKS LAKO AND KEITH LASI AIRA


Waigani: Salika, DCJ
2015: 14 December
2016: 12 February


CRIMINAL LAW – Practice and Procedure – Section 299 of the Criminal Code – Sentence for wilful murder – Sentencing considerations on wilful murder cases – Discretion of the Court to impose lesser penalty than the maximum prescribed.


Cases cited:


Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State (1979) PNGLR 653
Manu Kovi v The State (2005) SC789
Steven Loke Ume v The State (2006) SC 836
The State v Alois Erebebe and Taros Togot (2013) SC1228.
The State v Kenny Wesley (2012) Unreported and Unnumbered case CR 293 of 2010.
The State v Gregory Kiapkot and 4 others (2012) N4381
The State v Selmon and Misiadis Amos (2012) N5073.
The State v Elis Onda (2011) N4988.
Ure Hane v The State (1984) PNGLR 105


Counsel:


Mr Sopane, for the State
Mr J Mesa, for both prisoners


SENTENCE


12th February, 2016


  1. SALIKA DCJ: INTRODUCTION: The prisoners in this matter were charged with 4 separate counts of wilful murder of four Chinese nationals. After a trial Eric was found guilty of the 4 counts of wilful murder while Keith Aira pleaded guilty to all 4 counts of wilful murder.

FACTS


  1. The facts as found by the Court were that Keith and Eric had planned to rob Poomu Industries Ltd. They met Alex Sanana, George Paul and John Makai at the Koki market and told them of their plan to rob the Poomu Industries store at Koki. Alex, George and John did not take them seriously and thought the two men were bluffing. Between 7.00 pm and 8.00 pm Keith and Eric did come in to the Poomu Store. A robbery was in the process of being committed when the boss of the shop came down to check the flour mixing machine. The boss was immediately chopped to instant death by Keith Aira. Three other Chinese nationals were also chopped to death by Keith Aira as they came down from an upstairs living quarters one by one to check what was happening downstairs. They did not all come at once but one by one at intervals. The fifth Chinese man was able to escape death after he realised what was going on and after Eric had chased him back into their living quarters.

ISSUE


  1. The issue for the Court is to determine the appropriate sentence to impose on the two prisoners. It is obvious to me though at the outset that the sentences of the two men will differ because of the different roles each played in this murder although I am mindful of the application of Section 7 of the Criminal Code in this matter, but at the same time I cannot ignore the part played by Eric in the entire matter.

THE LAW


  1. Section 299(2) of the Criminal Code says that a person who commits wilful murder shall be liable to be sentenced to death. However this provision is not mandatory because under Section 19(aa) of the Criminal Code a convicted person may be sentenced to imprisonment for a lesser term.
  2. Wilful murder is the most serious of homicide offence and has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why the maximum sentence is death in this country while in some countries it carries life imprisonment terms.
  3. The circumstances of the killing in this case are rather gruesome. It was terrible and horrific. The still photographs tendered into evidence by consent at the trial tells of a horrible testimony to the insensitive and cruel killing of the 4 Chinese nationals. The prisoner Keith chopped all the 4 of them with a bush knife he took with him. The 4 victims were unarmed and were ambushed and killed mercilessly by the prisoner Keith. This killing in my respectful opinion falls into one of the most serious and worst cases of homicide in this country. With respect I have never before encountered such a case of brutal murder of 4 people by the same person at the same time one after the other using a bush knife with such ferocity. It could have easily been 5, but the remaining man ran back into the safety of the living quarters of the building upstairs.

SENTENCING CONSIDERATIONS IN WILFUL MURDER CASES


  1. The maximum penalty for wilful murder is death. This is subject to S19(aa) of the Criminal Code, which says:

"a person liable to death may be sentenced to imprisonment for life or for any shorter term".


  1. Moreover, the Supreme Court when interpreting Section 299 (2) of the Criminal Code as to whether the Court had a discretion to impose a penalty lesser then the maximum prescribed in Steven Loke Ume and Others v The State (2006) SC 836 said:

"...when S299 (2) is read on its own and in conjunction with S19(aa), it is clear that the death penalty is discretionary ...."


  1. With respect I agree with the interpretation of Section 299(2) of the Code by the Supreme Court in the Steven Loke Ume case, as to whether the death penalty was a mandatory sentence. The imposition of the death penalty is discretionary after taking into account all the relevant peculiar factual circumstances and the sentencing considerations.
  2. The maximum penalty is usually reserved for the worst instance of the offence, in this case wilful murder. In each case sentence is to be determined on its own merits and peculiar facts. (See Goli Golu v The State (1979) PNGLR 653, Avia Aihi v The State (No. 3) 1982 PNGLR 92, Ure Hane v The State (1984) PNGLR 105.
  3. The Supreme Court in Manu Kovi v The State (2005) SC789 gave some useful guide in categorising different types of homicide cases in the following way:
No.
Description
Details
Tariff
1.
Plea
- Ordinary cases.
- Mitigating factors with no aggravating factors.
No weapons used.
- Little or no pre-meditation or pre-planning.
- Minimum force used.
- Absence of strong intent to kill.
  1. – 20 years.
2.
Trial or Plea
- Mitigating factors with aggravating factors.
- Pre-planned. Vicious attack.
- Weapons used.
- Strong desire to kill.
20 – 30 years.
3.
Trial or Plea
- Special Aggravating factors.
- Mitigating factors reduced in weight or rendered insignificant by gravity of offence.
- Brutal killing. Killing in cold blood.
- Killing of innocent, defenceless or harmless person.
- Dangerous or offensive weapons used.
- Killing accompanied by other serious offence. Victim young or old.
- Pre-planned and pre-meditated.
- Strong desire to kill.
Life imprisonment.
4.
Worst Case – Trial or Plea
- Special aggravating factors.
- No extenuating circumstances.
- No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.
No details provided.
Death.

  1. The Supreme Court in Ure Hane v The State (1984) PNGLR 105; per Bredmeyer J said the following circumstances warranted the imposition of the then maximum sentence of life imprisonment.
  2. Later after the maximum penalty provision was amended to death the Supreme Court in Steven Loke Ume v The State (2006) PGSC9; SC 836 said that the death penalty which was now the maximum penalty be considered appropriate in the following circumstances:
  3. With respect in this case circumstances (ii), (iv) and (vi) are present. At the outset therefore the prisoners are candidates for the death penalty.

COMPARATIVE WILFUL MURDER CASES


  1. Both the prosecutor and the defence counsel have usefully provided the Court by listing the following comparative wilful murder cases to assist the Court in imposing appropriate sentences on the two prisoners. The following cases were cited by both counsel:
  2. The State v Alois Erebebe and Taros Togot (2013) SC1228.

This was a cross appeal filed by the Public Prosecutor to increase a sentence of life imprisonment imposed by the National Court to death.


  1. The prisoners were convicted for the wilful murder of nine (9) people (4 children ages 5,6,7 and 9and 5 adults). The 9 victims were ambushed by the prisoners using guns and bush knives. The Supreme Court found the case to fall into the worst category of wilful murder cases. The gravity of the case was so high in its totality that it nullified any mitigating factors that existed. There were no extenuating factors found in the case to warrant a lesser penalty. The prisoners were sentence to death for the wilful murder of the 4 children and a life sentence for the wilful murder of the 5 adults.
  2. The State v Gregory Kiapkot and 4 others (2012) N4381.

In this case 8 people were killed while travelling on a speed boat from Kokopo to Namatanai. The prisoners intercepted the speed boar after they passed the Duke of York Islands. The speed boat was carrying 8 passengers. All the 8 passengers were shot dead and their bodies thrown away into the sea. All the 5 accused were convicted and sentenced to death by hanging until they die.

  1. The State v Kenny Wesley (2012) Unreported and Unnumbered case CR 293 of 2010. The accused in this matter was a co-accused of Gregory Kiapkot. His trial was held separately from Kiapkot and others. He too was found guilty to the killing of the 8 people in the speed boat and he too was sentenced to death by hanging.
  2. The State v Selmon and Misiadis Amos (2012) PGNC289:N5073.

In this case the two prisoners planned, procured and counselled with others to kill 3 victims in a swamp. They were both sentenced to death.


  1. The State v Elis Onda (2011) N4988.

The prisoner pleaded guilty to 4 counts of wilful murder. She mercilessly killed her 4 children by throwing them into the Kum river at Warakum, Mt Hagen. The 4 children drowned. She also tried to kill herself but she was swept to the side of the river and survived. The murders she committed fitted into category 4 in Manu Kovi case and categories 4 and 6 in the Steven Lohe Ume case. The Court however did not impose the death penalty but imposed a life sentence on the grounds that she was constantly assaulted by her husband and that she was forced to do what she did as a result of what she was going through from her husband.


  1. The above cited cases are useful for the Courts purposes. In all the cited cases there were multiple killings and those convicted were sentenced to death. The only exception was in the case of The State v Elis Onda (2011) N4988 where a life sentence was imposed because of extenuating circumstances she successfully pleaded before the Court.
  2. There were 4 victims killed in this case. The prisoners' plea of guilty and expressions of remorse and his youthfulness count to nothing when one considers the viciousness and the ferocity of the killings. In my opinion there are no extenuating circumstances to convince this court to impose a lesser sentence than the maximum prescribed.

MITIGATING FACTORS


  1. The following mitigating factors are taken into account:-

Keith Aira


- pleaded guilty to all 4 counts of wilful murder
- admitted to his crimes from the start
- first time offender
- youthful offender
- prior good record
- expressed remorse

EXTENUATING CIRCUMSTANCES


  1. There were suggestions that because he was formerly employed by the deceased at the Poomo Industries at Koki and treated like a slave (working long stressful hours with very little pay) he was driven into doing what he did. With respect I do not consider that factor as an extenuating factor. This is because the prisoner had left the employment of Poomu and was now employed in another bakery. To suggest that this amounted to some kind of a non legal provocation is with respect in my respectful opinion too remote and not acceptable and should not be allowed to be taken into account.

Eric Lako


- first time offender
- prior good record
- youthful offender
- educated up to Grade 8 level
- played a lesser part in commission of offence.

EXTENUATING CIRCUMSTANCES


  1. He thought he was going to be part of a robbery but the robbery turned to wilful murders. He regrets accompanying Keith.
  2. I accept the extenuating circumstances relating to Eric. I accept that he got caught up with what Keith did and tried to lend support to Keith probably because he felt obliged to help. He could also have withdrawn totally from the crime scene. He played a much lesser role in the commission of the murders. He was present watching events unfold and never did anything until the fifth Chinese man came down. Perhaps there was no need for Eric to help because Keith had everything "under control" so to speak. Still the evidence is that he played a significantly lesser role.

SENTENCES


  1. Sentencing is a matter of discretion for the Courts in each case. This case is therefore no exception. Sentences for each case must therefore be treated on their own peculiar circumstances.
  2. In this case 4 wilful murders were committed. 3 men and 1 woman lost their lives brutally in the hands of Keith Aira. The manner in which they were killed was ruthless and in cold blood. There was no respect shown by Keith for sanctity of the human lives he took.
  3. This killing was pre-planned and callous. They had a plan to lure them to their deaths and this was successfully played out and achieved.
  4. The National Court in The State v Bernard Hagei (2005) N2913 said:

"There are so many wanton killings happening in the country as well as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent".


  1. With respect I cannot agree more with what the National Court said in that case. Similarly the killings in this case was premeditated, brutal and in cold blood of defenceless persons. To me the killings in this case were done by a wicked tempered man with utmost ferocity. The killing to me with respect is totally unthinkable.
  2. Considering the peculiar circumstances of this case Keith's culpability is so grave that in my respectful opinion deserves the ultimate, the maximum sentence. Whatever mitigating and extenuating circumstances he might have had, the degree of moral and criminal culpability and the degree of cruelty exhibited by Keith is so grave and reprehensible that he is undeserving of a chance to live his own life. It is only just and fair that he pays for the crime with his own life.
  3. Keith Aira is sentenced to death by hanging while Eric is sentenced to 30 years imprisonment in hard labour. Eric Lako has been in custody 3 years awaiting trial. 3 years is deducted. Balance he will serve is 27 years.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant

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