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Kovei v The State [2001] PGSC 5; SC676 (14 November 2001)

SC676

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR No. 32 of 2000

ALOISES PETER IROBO KOVEI
-Appellant-

V

THE STATE
- Respondent-

WAIGANI: AMET,CJ., GAVARA-NANU, KANDAKASI, JJ.
2001: FEBRUARY 23
2001: NOVEMBER 14

CRIMINAL LAW – Appeal against sentence – Murder committed in pursuance of abduction and rape – Sentence and conviction after trial – Two prior convictions – Worse type of offence – Appeal dismissed – Sentence of life imprisonment confirmed – Criminal Code (Chp. 262), S.300 (1)(b)(i).

Cases Cited
Avia Aihi v. The State(N0.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
Joe Foe Leslie Leslie v. The State (August 1998) SC 560
John Fatty Marasev. The State [1994] PNGLR 415
The State v Kaudik [1987] PNGLR 201
James Mora Meaoa v. The State [1996] PNGLR 280
State v Penias [1994] PNGLR 48

Counsels
Appellant in Person
K. Umpake for the Respondent

14th November 2001

BY THE COURT: This is an appeal by the appellant against a sentence of life imprisonment for murder of one Marin Tangivo ("the deceased") contrary to s.300 (1)(b)(i) of the Criminal Code (Chp. 262) ("the Code") committed in the course of pursuing an unlawful purpose. The unlawful purpose was a gang abduction and rape of a young girl contrary to sections 350 and 347 respectively.

The appeal was heard on the 22nd of February 2001 and was reserved for the Courts decision. This is now the Court’s decision.

The Facts

The relevant facts are these. On the 3rd of February 1999, the deceased went with a girl friend, an Elizabeth Matene to 9 mile. They went there to visit Elizabeth’s aunty. After the visit, Elizabeth and her aunty brought the deceased to the bus stop for her to catch a bus to her parent’s house at Bomana. That was about 5:00pm. They waited at the bus stop until about 6:00pm and no bus turned up. Consequently, they decided to go back to Elizabeth’s aunt’s house and spend the night there and they headed back for the house.

On the way, a group of young men numbering about 8 to 10 came from behind Elizabeth, the deceased and Elizabeth’s aunty and held them up with bush knives and pocket knives and a gun. They tried to pull them away from their shirts or the tops they were wearing at the time. The gang threatened to kill them and in fact attempted to stab Elizabeth but she managed to fight them off with the help of her aunty and escape into a nearby house. The aunty was stabbed three times before she escaped being abducted and raped.

Unfortunately, the deceased was not able to fight the gang off and escape. She was confronted and held up by about 4 to 5 of the gangsters and taken away from where she was held up. The gang then raped her in turns. The Appellant was the 7th person to rape her. Thereafter she was taken to another place, a church and there the gang again raped her in turns.

The deceased cried in pain and called for help. In a bid to cover their crimes, the gangsters killed her by chopping her around the neck area and threw her into a drain. The deceased’s body was subsequently found through police investigations. The appellant was charged for the murder of the deceased. The State raised s. 7 of the Code and that made the Appellant a principle to the gang murder of the deceased.

The Appellant denied the charged but was found guilty after a trial, which was exclusively on depositions which, was admitted with the consent of the Appellant. In his record of interview, the Appellant admitted to having abducted and raped the deceased. He however, denied having killed her and concealing her dead bodily.

The appellant’s own father, gave a statement which was in evidence. That statement speaks of the Appellant being aged about 24 years as at the 5th of February 1999 and coming from a broken family. His father appears to have remarried two additional wives after the appellant’s mother had died. He lives with those wives and their children. The appellant did not finish off his education well. He got into drugs and was convicted by the District Court twice, first in 1997 and the second one in 1998. Since then, he developed into a criminal with stealing from people to survive and engaging in acts of violence even to the point of threatening and attempting to kill his father and his step mothers. He has become a street boy living from one place to another after committing a crime at the last place on each occasion. He thus has no permanent place of abode.

The National Court's finding and Judgement

The trial judge found that the killing was the worse of its kind. This is what the trial judge said:

"This killing in my view is one of the worst murder killings. How worse can it be? A woman abducted, raped and then killed. This was a gang rape or pack rape and of course the killing can be described as a pack killing as well. This offence is now prevalent in this country and more particularly in the 9-Mile area recently and as I have indicated that it scored another recently. These types of killings attract a stern punishment from the courts and the courts must send out a warning that stern punishments will be meted out to those who commit these types of killings. While you are young man and you did not have a good upbringing, the vicious nature of the killing in this case in my view overweighs any mitigating factors that may have been said on your behalf.

And in that regard, the sentence of the court is this. That you are sentence to life imprisonment with hard labour."

Clearly, the learned trial judge found that the case before him was of the "worse type" of killing.

The offence and sentencing trends

The offence with which the appellant has been charged is provided for by s. 300(1)(b)(i) of the Code in the following terms:

"(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) ... or

(b) if death was caused by means of an act-

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) ...

Penalty: Subject to Section 19, imprisonment for life.

(2) ...

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person."

It is a well accepted principle in our criminal jurisdiction now that, the maximum penalty prescribe by the legislature should be reserved and imposed only for the "worst type" or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi v. The State(N0.3) [1982] PNGLR 92 at page 96 referred to its earlier decision in Goli Golu v. The State [1979] PNGLR 653 and said:

"In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

(per Kidu CJ)

However, that is not to be taken to mean that the offender has to be first found as a "dangerous" offender before the prescribed maximum penalty can be imposed. Instead the sentence must be proportionate to the offence: see Avia Aihi v. The State (No.3)(supra) at page 105.

In Joe Foe Leslie Leslie v. The State (August 1998) SC 560, the National Court imposed a sentence of life imprisonment for the attempt murder of a policeman in the course of his duty. In so doing, the Court found that it was the worst type of attempted murder case and imposed the maximum prescribed penalty of life imprisonment. The prisoner appealed to the Supreme Court against the sentence and the Supreme Court dismissed the appeal.

The murder in this case was committed whilst in the prosecution of an unlawful purpose, namely abduction and rape. These are offences respectively prescribed by sections 350 and 347 of the Code. Sentences imposed by the Courts for abduction and rape are at the highest 19 and half years: see John Fatty Marase v. The State [1994] PNGLR 415, for the worse type of abduction and rape cases. In relation to this kind of offences, this Court has already expressed the view, per Amet J. (as he then was) in The State v Kaudik [1987] PNGLR 201 as was quoted and adopted by the Supreme Court in James Mora Meaoa v. The State [1996] PNGLR 280 that:

"Rape is generally regarded as the most grave of all sexual offences. In a paper put before us for our consideration by the Policy Advisory Committee on Sexual Offences, the reasons for this are set out as follows:

'Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in effect obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation; after the event, quite apart from the woman’s continuing insecurity, the fear of venereal disease or pregnancy

'Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and remarked that it involved an act which we as a society attach considerable value'."

This Court in the James Mora Meaoa case has also expressed the view that such conduct and or behaviour is intolerable and that our women and girls have to be protected from man who invade their privacy. In so doing, it endorsed the following statement from Injia J in State v Penias [1994] PNGLR 48:

"Rape constitutes an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone, to men like the prisoner, who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel freely alone or in groups, in any place they choose to be, at any time of the day. At times, because of their gender, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of the pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, and in small towns and centres, who once enjoyed freedom and tranquillity, are living under fear and feel restricted. That is why the Supreme Court in Aubuku’s case said that people who commit rape must be punished with a strong punitive sentence."

Further this Court in that case, also noted and endorsed calls for tougher or stringent penalties to be imposed against such offenders.

It should undoubtedly be clear from the above that, rape and or abduction and rape in themselves are very serious offences which call for tougher penalties. Rape alone carries a penalty of life imprisonment subject to s. 19 of the Code, which allows for the imposition of a lower sentence than the prescribed maximum in appropriate cases. Thus, when murder or other offences gets added to that, it makes the case even more worse as opposed to a case only of rape, abduction or murder standing alone. The sentences that have been imposed to date have not served the intended purpose of deterring would be offenders from committing such offences. Instead, the number of this kind of offences is on the increase. It therefore, behoves the Courts to impose sentences higher and above those that have already been imposed to correspond with that increase and correct the apparent failure of the passed sentences from deterring would be offenders from offending and make our society save for our women and girls.

In respect of the offence of murder, it also carries life imprisonment as the maximum prescribed sentence or penalty.

In the present case, the appellant whilst in the company of other young men abducted, raped and killed an innocent young girl. The killing was to prevent a discovery of their illegal acts of abduction and rape. The victim was abducted from a public place in full view of other people. There was therefore no hesitation and a sense of fear that they would be caught and dealt with according to law. By their conduct, they acted as if they were above the law and that there was nothing anybody could do against them. After having abducted the victim they repeatedly raped her. A round of the repeated rapes took place in a church building. The appellant and his accomplishes failed to show any respect and recognizance to the fact that churches are places of worship and that is where God’s presence is. They treated the church as nothing and by virtue of their conduct, they showed no respect for God and his house of dwelling. Our Constitution and country is built on the principles of Christianity and the churches help to remind us of that fact with a view to helping us to recognized the essence of our survival as a nation. The appellant and his accomplishes did not show any respect for the very essence of our survival as a nation by choosing to execute a serious crime against humanity in a church. As if what they did was not enough, the appellant and his accomplishes went even further to the extreme of killing the deceased who was by then greatly traumatised and very helpless.

The conduct of the appellant and his accomplishes was very senseless. They acted like beings beyond the intellect of animals for animals do not necessary appreciate the consequences of their conduct. However, animals do not unnecessarily and without any good cause, act in the way in which the appellant and his accomplishes acted.

In all the circumstances, we agree with the trial judges finding that this was a worse case of murder. It thus called for a tougher penalty with a view to sending a message to like mined persons that the commission of such offences will be met with tougher penalties. Society does not accept this kind of conduct. So people who engage in them need to be locked away for the protection of the community. Indeed, we note that Parliament in prescribing the maximum penalty of life imprisonment, it intended that such a sentence should be imposed. Of course, if an offender is able to establish some good mitigating factors, the Court may in the exercise of the Court's discretion under s. 19 of the Code, impose a lesser sentence. The tendency of the Courts in not readily imposing the prescribed maximum, may have contributed to this type of offences being continuously committed. We consider it is high time now for the Courts to say enough is enough and that such offenders will not be dealt with lightly.

The learned trial judge in the case before us, we believe had such convictions and imposed the sentence it imposed. In our view, the offence was of the worst type and the sentence given was proportionate to the offence. We have come to that view especially after having regard to the fact the prisoner appears not to have shown any genuine remorse and has not tried to appease the uncalled for loss he and his accomplishes perpetrated against the deceased and her relatives say by way of compensating the deceased family and her relatives. Although he appeared to be a young offender, he certainly had a past record of criminal records. His father had even given a statement against him essentially saying, the appellant has developed into a criminal and his life is one of crime more than not. Taking into account these factors, we are of the view that, the learned trial judge did not err in finding this was a worse type of murder case for which the maximum prescribed sentence of life imprisonment was called for and he imposed it. Consequently, we dismiss the appeal and confirm the sentence of life imprisonment imposed by the National Court.
________________________________________________________
Lawyer for the Appellant: Nil (In Person)
Lawyer for the Respondent: Public Prosecutor