State v Keake (No 3) [2001] PGNC 117; N2079 (27 February 2001)

N2079

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 30 of 1999

THE STATE

v.

ANDREW AISA KEAKE (No.3)

WAIGANI: KANDAKASI, J.
2000: November 14 and 15
2001: February 7, 8 and 27

CRIMINAL LAW – Sentence – Particular offence – Wilful murder – Death caused by a single shot from a shotgun to the neck area – Imprisonment for term of 20 years.

Cases Cited:
Ure Hane –v- The State [1984] PNGLR 105
Avia Aihi –v- The State (No. 3) [1982] PNGLR 92
Goli Golu –v- The State [1979] PNGLR 633
Mako Ranjiji –v- The State [1994] PNGLR 44

Kutapa Keapu –v- The State [1994] PNGLR 135

The State –v- Angaun Kakas & 3 Others [1994] PNGLR 20
The State –v- Paege and Ralya Tanda [1994] PNGLR 65
Yandasing –v- The State [1995] PNGLR 268

Counsel:
Mr. K. Umpake, for the State
Mr. D. N’Dranoh, for the Defendant

27th March 2001

DECISION ON SENTENCE

KANDAKASI, J: This Court found you guilty of wilful murder of one Theodore Aisa Ani in the written judgement the Court delivered on the 27th February 2001. Arguments were then heard both for and against you on the kind of sentence you should receive. I then reserved a ruling on that to the 23rd March 2001 with liberty to bring that forward if the decision was ready before that time. Unfortunately, I was sent to Goroka on short notice and that made it difficult for me to deliver the Court’s decision until today. This is the Court’s decision on sentence.

Issue

The main issue is, whether this case is one of the "worse types" of wilful murder case and therefore the maximum prescribed penalty of death should be imposed? This issue can properly be determined by having regard to the both the Supreme and National Court decisions on point having particular regard to the particular facts of the case before me.

Facts

The relevant facts are set out at page 2 of the decision on the verdict delivered on the 27th February 2001. In summary, however, for the purposes of sentencing the facts can easily be summarised in terms of this being a case of wilful murder of an unsuspecting victim. The deceased was a relative of yours and your were the only person with the deceased at the time of his death. On the available evidence, this Court found that the deceased was shot at a close range by with a shotgun. You claimed that the deceased committed suicide but on the evidence, the Court found that there was no suicide. Instead it was a case of wilful murder by you. The killing appeared to have been related to or following a dispute between your family and that of the deceased over land on which the deceased’s family put up a house. Apart from that, there was no other reason for which the deceased could have been killed.

The Offence

The offence of wilful murder is prescribed by s.299(1) of the Criminal Code (Chapter 262) (hereinafter "the Code") as follows:-

(1) Subject to 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."

It is now well accepted that s.299 of the Code is subject to the provisions of section 19 of the Code. And that section reads:-

(1) In the construction of this Code, it is to be taken, except when it is otherwise expressly provided –

(aa) person liable to death may be sentenced to imprisonment for life or for any shorter term.

In view of the wording in Section 19(1)(aa) of the Code sentences other than death have been imposed for persons found guilty of wilful murder as in your case.
Your lawyer, drew the Court’s attention to the Supreme Court decisions in Ure Hane –v- The State [1984] PNGLR 105, Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 and Goli Golu –v- The State [1979] PNGLR 633 and submitted that the maximum prescribed penalty of death is usually reserved for the more serious or "worst type" of wilful murder of cases. In Ure Hane –v- The State (supra) the Supreme Court referred to the case of Avia Aihi and quoted the following from page 92 of that judgement:-

The basic sentencing principle of the proportionality to the offence applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed on the cases properly categorised as "worst type" cases.

The court then quoted the following from Goli Golu at page 653:-
In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence.

Since the judgement in those cases, the penalty for wilful murder has been increased from life imprisonment to death by an amendment to the penalty provision in 1991. Accordingly, the principles enunciated in those cases apply with modification to say that the maximum penalty of death should be reserved for the "worst type" of wilful murder cases.

Bredmeyer, J. in the Ure Hane case without exhausting the list, provided the following list of cases he considered to be serious kinds of wilful murder from pages 107 – 109 of the judgement:

1. Wilful murder committed in the cause of committing a theft, robbery, a break and enter, or a rape.
   
2. Wilful murder of policeman or a prison warder acting in the execution of his duty.
   
3. Wilful murder committed in the cause of or for the purposes of resisting, avoiding or preventing lawful arrest or assisting in an escape from a lawful custody.
   
4. Wilful murder of a person in police or court custody.
   
5. Wilful murder in a payback killing situation of a completely innocent man.
   
6. Wilful murder in a second or third murder.
   
7. Any murder where the offender is a long record of violence such that he is likely to commit such offences in the future.
   
8. Wilful murder of the Governor General, the Prime Minister, the Leader of the Prison Commander, the Speaker of the National Parliament, the Chief Justice, a Bishop, a Visiting Prime Minister, the Pope, or other VIP’s.
   

Then on page 109 of the judgement, His Honour proceeded to say:-

I consider that if a wilful murder falls into any one of the above categories, a Judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but much seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the trial judge then must consider the seriousness of the particular murder in the case of seriousness of the murders in that category.

Further on at page 110 of the judgement the Court said: -

The categories of more serious murders, which I have listed, are not closed and are flexible. Different judges may disagree with some of them and wish to have other categories. I have considered and rejected a category of murder by explosives or firearms because such matters, although very serious, are not common in Papua New Guinea.

In the Goli Golu case, the offender killed a member of his opposing clan who was a spectator at a court proceeding at Kwikila Courthouse. The National Court sentenced him to life imprisonment but the Supreme Court on appeal reduced that and substituted it with an imprisonment for a term of thirteen (13) years. In so doing the Supreme Court again referred to the need and to reserve the maximum penalty of life imprisonment for the most serious instances of the offence and the need to impose a punishment that should be reasonably be proportionate to the gravity of the offence. Applying those principles to the case before it, the Supreme Court was of the view that the imposition of life imprisonment was out of any reasonable proportion to the circumstances of the crime for which a long fixed term of sentence was appropriate. In the Avia Aihi case, the Supreme Court again highlighted the basic sentencing principle of the need to make sentences proportional to the offence. It then considered the sentence of life imprisonment which was the maximum punishment prescribed at that time for wilful murder and held that it should be imposed only in cases properly categorised as of the "worst type" cases of wilful murder.

The Court then went on to hold that the law in Papua New Guinea does not require that imprisonment for life be reserved for "dangerous" offenders but the circumstances of the case should dictate the appropriate penalty. The case before the Supreme Court was one in which Avia Aihi had killed in payback the deceased, a Morris Modeda, who was on trial for dangerous driving causing the death of her husband. The killing took place when the court went out to view the scene of the alleged offence and the appellant with others rushed the accused and the appellant managed to inflict upon the deceased fatal wounds which eventually led to the deceased’s death. The National Court took the case to be of the "worst type" of its case and imposed the then maximum penalty of life imprisonment. The Supreme Court agreed on appeal that it was a "worst type" of wilful murder case and affirmed the sentence of life imprisonment.

In Mako Ranjiji –v- The State [1994] PNGLR 44, The Supreme Court affirmed a decision to impose a sentence of 25 years by the National Court. In that case, the appellant was in a group of men who attacked and killed a villager in a payback incident. The deceased was an innocent man walking on a Mission Station and he had no reason to fear anything.

The appellant was a leader of the group, which killed the deceased. However, he had a past good behaviour and on that basis the trial judged decided not to follow past precedents and decided to impose the term of 25 years in hard labour.

The Supreme Court in Kutapa Keapu –v- The State [1994] PNGLR 135 dismissed an appeal against the conviction and severity of sentence on two counts of wilful murder. In that case, the appellant was said to have gone "berserk" and wielded an axe chasing people in the village. In the process, he hit an old woman and she was knocked down unconscious. He also confronted a group of men and struck a man on the shoulder but he did not die. Subsequently, on the same day, the appellant went to the village, approached a woman in the house and as she came out, he struck her with the axe and she died instantly. The appellant claimed diminished responsibility but the National Court rejected that and convicted and sentenced him to twenty-five years. The Supreme Court found nothing wrong with it and affirmed the sentence.

In another case, The State –v- Angaun Kakas & 3 Others [1994] PNGLR 20, the National Court imposed a term of 10 years, 12 years, 14 years and 15 years respectively for wilful murder in a group attack. The deceased was chopped on various parts of his body by each of the defendants.

In The State –v- Paege and Ralya Tanda [1994] PNGLR 65, the National Court sentenced each of the defendants to life imprisonment after finding that the case was one, which fell into the "worst type case", or "more serious type of case". In that case, the defendants wilfully murdered one Piari Loo in an ambush situation when the deceased came out of his house to investigate some disturbances. He was attacked by the two defendants and chopped on his stomach so severely that he died in hospital from the injuries some weeks later.

Finally, in Yandasing –v- The State [1995] PNGLR 268, the Supreme Court upheld a National Court decision to impose a life imprisonment against the appellant for wilful murder. The murder in that case was committed against a Kuri Max Sai, at a Catholic mission where he had gone for church service in the morning. After the church service, the deceased and others were sitting down near the church and the appellant came up to them and talked to them. At that time, there was no evidence of any conduct on the part of the appellant, which could be interpreted as being forced out towards the deceased. The appellant then walked up behind the deceased and suddenly attacked him with an axe without any warning. The deceased died instantly.

On appeal, the appellant argued that there was no evidence of any motive for the killing and so therefore the conviction and sentence was wrong and unsafe. The Supreme Court held that the result of the appeal could not be determined solely on that point. It then proceeded to consider questions in relation to the identification of the appellant as raised in the appeal and the other aspects before deciding to dismiss the appeal. The trial judge took into account the common occurrence of tribal fights and payback killings in the Highlands. The Supreme Court held that, there was no error in the National Court taking those matters into account before arriving at the decision to impose life imprisonment.

The Present Case

In your case, you shot the deceased with a shotgun from close range. That resulted in the death of the deceased. You claimed that the deceased committed suicide. There was no evidence produce to prove that. This Court therefore, found there was no suicide. You were alone with the deceased and you alone were in a position to explain what actually happened. You choose to give a statement from the dock and that left a lot of questions unanswered. There was however, some evidence of some dispute over the land between your family and that of the deceased’s.

The photographic evidence showing a penetration of a shotgun bullet and its exit clearly demonstrates the serious blow to the deceased’s neck area. Unlike, at the time of the decision in Ure Hane’s case, it is now common that, a lot of lives are being claimed by the use of dangerous weapons such as guns both home-made and factory-made whether they are rifles or shotguns or pistols. This does not however, in my view, make the killing in the present case of the "worst type case". It is not like in a payback situation where a group attack as was in the case of The State –v- Angaun Kakas & Others, where the defendants were given sentenced of varying years in an ambush situation or at a court hearing as in the other cases cited above. I thus, do not consider the case falling into the worse category of wilful murder cases. This is so not withstanding the use of a firearm. I contrast the situation to say, wilful murder whilst in the course of an armed robbery of a dwelling house at night using a firearm or a hold up on a highway. I therefore, do not consider this case calls for an imposition of the maximum prescribe penalty of death or life imprisonment in accordance with s. 19(1)(aa) of the Code. That is not to say that the taking of a human life by the use of dangerous weapons such as a gun is not a serious offence. It is a very serious offence which requires an imposition of a term of years, if that is consider appropriate in the circumstances of the case, but higher than those imposed for murder or manslaughter cases.

Sentence

In considering an appropriate sentence for you, I also note and do take into the account that, you are 21 years old and single. You come from Inauabui village, Bereina in the Central Province. You come from a family of 9 boys and 5 girls and you are the fifth born in the family. Both of your parents are alive and are in the village. You have completed Grade 5 in 1989 at your village school. You are unemployed in the formal sector. You have lived all your life in the village. By way of religion you are a member of the Roman Catholic Church.

Further, I note that, you have no prior convictions and this is your first ever offence. Furthermore, after the deceased was shot, you tried to carry him to the village but later you left him on the way and went to the village and reported the death of the deceased to the deceased’s parents. Finally, since your arrest, you have been in custody for one year, seven months and two weeks now.

After taking into consideration all of the above, I consider a sentence of 20 years appropriate to reflect the society’s disapproval of killings in the kind of situation you have killed the deceased and in particular using a firearm. Your are lucky I have not found your case to be in the "worse type" of wilful murder cases. If I did, I would have imposed the maximum prescribed penalty of death or falling short of that, life imprisonment. This Court thus sentences you to 20 years in hard labour less the one year, seven months two weeks you have already spent in custody. You are therefore, order to serve the balance of 18 years 4 months and 2 weeks at Bomana CIS.
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Lawyers for the State: Public Prosecutor
Lawyers for the Defendant: Public Solicitor