State v Mesu [1999] PGNC 35; N1883 (12 May 1999)

Unreported National Court Decisions

N1883

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 623 OF 1998
STATE
VS
DAVID KANA MESU

Goroka

Kirriwom J
15-16 March 1999
16 April 1999
12 May 1999

Cases Cited

The State v Otomo Onisa Yala, Simon Kaita Ralawe & Mulu Mumuli [1995] PNGLR 431

The State v Yapes Paege and Relya Tauda [1994] PNGLR 65

Luingi Yandasingi v The State [1995] PNGLR 268

Mako Ranjigi v The State [1994] PNGLR 44

Public Prosecutor v Keru [1985] PNGLR 78

Counsel

Mrs C. Ashton-Lewis for the State

Mr Gender for the Accused

SENTENCE

12 May 1999

KIRRIWOM J: The prisoner was found guilty after a trial for the wilful murder of the deceased Birinti Ahubo, a member of a clan with which the prisoner’s clan was in tribal conflict with for some years. I do not wish to set out the facts again which is already adequately stated in the judgement.

The killing in this case followed discontentment over non-payment of the outstanding compensation monies amounting to 10% of the total sum for the death of a clansman in the prisoner’s line. The deceased’s clan who were allegedly responsible for the death were to pay K5,000 to the prisoner’s line and K4,500 of the amount was already paid. There was however dissatisfaction over the non-payment of balance of K500. On the morning of the day of this incident the two parties met in front of Kainantu Police Station to talk about this matter. The deceased’s line promised to pay at a later date and requested to be given some time. The prisoner’s line were not happy. Consequently the prisoner and a few of his clansmen preceded ahead of their enemies after the meeting ended and waited on the road past Aiyura fully armed. It seemed the prisoner and his line had pre-planned this attack. They would have had their weapons hidden along the way anticipating a negative result of the meeting. There is no doubt that this is a clear pay-back killing. The deceased was shot and chopped to death because his line did not pay the K500 to the prisoner’s line. The deceased is probably an innocent man because there is not evidence on who had actually caused the death of the Batainabura man. For purposes of this case, what is known is that there was a meeting in the morning at Kainantu Police Station where the prisoner and his line demanded the balance of K500 in compensation for their deceased clansman. So the only thing that the deceased was guilty of to be executed by the prisoner and his clansmen was that he was a member of the opposing clan.

Pay-back killing must stop. Tribal fights and pay-back killings are the two most down-grading social ills or practices that continue to paint bad image to the reputation of this country abroad and the people here are look upon as still primitives and man-eaters or cannibals. Both government and Christian influence over the last seventy years must have prepared the country and its people to appreciate modern civilisation with all its values and code of behaviour. But unfortunately the converse seems to be the trend of progression and it needs tough measures and sanctions to restore common decency and proper sense of direction.

The prisoner faces a very serious charge which carries the maximum penalty of death. This Court is mandated by law to impose sentence of death which means under the law he can be hanged by his neck until he is dead. The crime of wilful murder carries this most severe penalty because the people of this country, through their Parliament, have expressed their desire for this punishment. Pay-back killing comes with pre-meditation and planning. It is not a speer of the moment action. It is a deliberate, and calculated act planned and carried with the specific intent and object which is to bring about the death of the deceased.

What I have to decide now is whether I impose the maximum sentence of death penalty, a life sentence or a determinate term. Defence Counsel urged me to not consider death penalty nor was death penalty pressed for by the State. I have given a careful consideration to the facts and I accept that the prisoner was not a single perpetrator of this crime. He was with his other clansmen who also attacked the deceased with their weapons. The prisoner was clearly identified chopping the deceased with his bush-knife. However this prisoner is the only one who has been brought before this Court to answer for the group’s action in this heinous crime and I am not going to make him the scape-goat by giving him the rope. What I have to decide now is whether he gets life or a determinate sentence as I am not satisfied that death sentence is appropriate. The seriousness of the case is the crucial question. I have already discussed the circumstances under which this crime was perpetrated by the prisoner and his clansmen. There is no clear-cut answer to the question on how serious or how much worse must a wilful murder be to be categorised as the worst case. Some of these discussions are published in a number of reported cases such as in The State v Otomo Onisa Yala, Simon Kaita Ralawe & Mulu Sumuli [1995] PNGLR 431 and The State v Yapes Paege and Relya Tauda [1994] PNGLR 65. And I quote from Woods J’s judgement at p. 436 in State v Otomo Onisa Yala & Ors (supra)

‘It is hard to distinguish between wilful murders, as they all involve the same background, namely a deliberate intention to kill and the subsequent loss of a life, whether by shooting or axing other means, and there can be no real consideration that one killing is any different to another. But occasionally one can accept that there are killings that appear more vicious, or terrible, or more cold--blooded or involve completely innocent lives, for example, a cold-blooded ambush killing on the highway of innocent people who have nothing to do with the perpetrators. And it is, therefore, accepted that sometimes there are customary pressures and situations which get out of control and which, while still wilful murder under the law, are not, perhaps, as vicious, or don’t horrify society as much.’

The trial judge proceeded to sentence two of the three prisoners who actually gunned the deceased to life imprisonment and the other prisoner who was merely present and became liable by virtue of section 7 of the Criminal Code to 20 years imprisonment. That case was identical in some respects to the present case because the whole incident sparked off from an argument over compensation flowing from a basketball match that got out of control. There is no doubt that this present case was indeed a vicious cold-blooded killing as it was an ambush-type attack and for all that this Court knows is that the deceased was an innocent person. His only wrong was that he was a member of the enemy line. The issue in that case, as here, was on identification alone. I found on the evidence that the prisoner was properly identified, the attack was in day light and the witnesses for the State were all from the rival clan and who may have had reasons to lie about the prisoner, but I was not convinced that they were lying or they could have been mistaken in their identification, I was nevertheless satisfied that parties knew each other. In the case of Luingi Yandasingi v The State [1995] PNGLR 268 the Supreme Court composed of Amet CJ, Kapi DCJ and Los J confirmed a life sentence of the appellant who wilfully murdered the deceased with an axe when he walked up to him from behind and attacked him without a warning in front of a church one Sunday morning about 8 o’clock as worshippers gathered for fellowship or Sunday Service. When referring to the appellant’s submission that the trial judge placed undue weight to the fact of tribal fight and pay-back killings in the Highlands, the Court said at p. 271:

‘In relation to sentence, counsel for the appellant submitted that the trial judge gave undue weight to the fact of tribal fight and pay back killings in the Highlands. We do not find any error in this. Having regard to the surprise manner in which the deceased was attacked and the use of a lethal weapon such as an axe, it cannot be said that this is an excessive sentence.’

This is the Supreme Court endorsing the sentiments expressed about the prevalence of tribal fights and pay-back killings in the Highlands that don’t appear to be getting any nearer to total eradication or extinction. These practices must go.

In Mako Ranjigi v The State [1994] PNGLR 44 the Supreme Court comprising Kapi DCJ, Woods & Los JJ dismissed an appeal against conviction and sentence by the appellant who was found guilty and convicted of wilful murder and sentenced to 25 years imprisonment. The appellant was one of a group of clansmen who set upon the deceased at a mission station and killed him. The deceased was a mission worker and he had no reason to fear any harm coming upon him. He unfortunately was a member of a clan that the appellant’s line were in conflict with over an incident earlier in the week. The Supreme Court rejected the appeal against conviction. The appellant’s defence was alibi and the issue was one of identification. The factual circumstances are not too dissimilar to this case before me. And the court said this on sentence at p. 46:

‘This was a deliberate attack on, and the killing of, an innocent person. He was working at the mission, and he thought he had no reason to fear anything. It has been clearly stated by the Supreme Court that the fact of a tribal fight killing does not reduce the seriousness of the offence. In Public Prosecutor v Keru [1985] PNGLR 78, the Court held the custom of pay-back is contrary to the general principles of humanity, and a person who commits a pay-back murder in accordance with his custom is entitled to no reduction of sentence because of that custom.’

The prisoner is not altogether an unsophisticated villager. He is 20 years old and has had some education up to Grade 7 at Kainantu High School. He left school due to school fees problem. Although he is from Batainabura at Obura/Wonenara, he was living at Kompri in his wife’s place operating small business activities at the time of his arrest. Both parents are alive and he has brothers and sisters who live in Batainabura. He had one child who died when only 4 months old but he also supports an adopted child. On allocatus he maintained his innocence of the charge but expressed sorrow for the death of the deceased whom he said he had no knowledge of. The prisoner had a clean record all is life until now. I do not over-look the fact that there was an on-going concern for the non-payment of the balance of K500 for the compensation. This fact may bear heavily in someone’s mind in a given situation.

I have looked at the range of sentences imposed by the Court over the last three years and given the fact that the maximum sentence for wilful murder is death, it is no surprise that the Surpeme Court has been slow in over-turning life sentences on appeals from this Court. The sanctity of human life must be upheld by the Courts. Both National and Supreme Courts are the guardians of the Constitution and the rule of law. Almost twenty five years since Independence is long enough time for Papua New Guineans to have become the more wiser and developed some sense of responsibility in their actions. This case therefore calls for a strong deterrent sentence that will serve not only as a punishment to the prisoner but also as a warning to the public. The range that I examined places the highest determinate sentence in wilful murder at 30 years imprisonment. The prisoner here is a young man but not a youthful offender. It is unfortunate that his young family has to become victim to his irresponsible decision and behaviour.

Taking into consideration all the circumstances of this case and the factors that weigh in favour and against the prisoner, I sentence him to twenty-five years imprisonment in hard labour. A period of one year and one months is deducted for time spent in custody awaiting this trial and he goes to prison for 23 years and 11 months.

Lawyer for the Accused: Public Solicitors

Lawyer for the State: Public Prosecutors