State v Nare [2001] PGNC 19; N2223 (25 May 2001)

N2223

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO: 418 OF 2000

THE STATE
-v-

SOLE NARE

Wabag : Jalina, J.
25 May 2001

CRIMINAL LAW – Sentence - Wilful Murder – Conviction following trial – Whether wilful murder amongst worst category – Wilful murder not amongst worst category of wilful murders - Maximum penalty not appropriate – Sentence to a period of years appropriate – Criminal Code s. 299 (2).

Counsel:

P. Kumo for the State

P. N’dranoh for the Prisoner

25 May 2001

SENTENCE

JALINA, J. This prisoner was convicted yesterday of wilful murder following a trial. I then adjourned to 9:30 this morning to administer the allocutus to the prisoner and for both counsel to address the court on sentence. However, Mr. Kumo for the State did not appear. The court has not been informed of any reason why he has failed to appear. I consider such failure to be both disrespectful and contemptuous and may I say at the outset that I would not hesitate in future to refer counsel to the Statutory Committee of the Law Society for disciplinary action or cite counsel for contempt of court. I then took submissions from defence counsel only to determine the appropriate sentence.

The maximum penalty under s. 299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but by Act No: 25 of 1991 Parliament amended subsection (2) and replaced life imprisonment with the death penalty. Since the amendment by Parliament, the National Court in Papua New Guinea has imposed the death penalty in two cases. In the State –v- Ombusu Doherty J. imposed the death penalty on a Popondetta man for wilful murder but was quashed by the Supreme Court on appeal on technical grounds. In the State –v- Steven Loke Uma and 2 ors the appellants’ appeal against Woods, J’s decision in Kimbe on 7th February 1997 to impose the death penalty is pending before the Supreme Court. So judges should not feel reluctant to impose the death penalty in an appropriate case.

At the time when life imprisonment was the maximum penalty for wilful murder the Supreme Court held in Ure Hane –v- The State [1984] PNGLR 105 that "when considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so for as the law allows, categories those "worst type" cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offenders."

In earlier cases the principle that the maximum penalty should be reserved for the worst type of case was noted. For instance in Goli Golu –v- The State [1979] PNGLR 653 the Supreme Court said:

"In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence."

In Avia Aihi –v- The State (No. 3) [1982] PNGLR the Supreme Court said at p. 92:

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

In Ure Hane –v- The State (supra) Bredmeyer, J. lists at pages 107-109 eight (8) kinds of wilful murders as falling among the worst or most serious category. They include:

(1) Wilful murder done in the course of committing a theft, a robbery, a break and enter or a rape.

(2) A wilful murder of a policemen or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

(4) A wilful murder of a person in police or court custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(7) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

(8) A wilful murder of the Governor-General, the Prime Minister, the Leader of the Opposition, the Speaker of National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.P’s.

For my part I would consider wilful murder with a shotgun, killing someone and then copping the body into pieces, shooting and cutting the body to pieces, killing someone and burning the body to be among the worst category of wilful murders which could warrant the imposition of the maximum penalty.

In his statement on the allocutus, the prisoner has expressed remorse to the deceased’s family. He has also expressed remorse to the two men he injured and their families as well as to his own family.

He is aged about 40 years, and is married with two children. He has no prior convictions and has been educated up to grade 6 level.

In his submission in mitigation of sentence, Mr. N’dranoh has referred me to the cases which deal with principles applicable when considering whether or not the maximum penalty should be imposed. Most of the cases he referred to have already been cited by me above. He also referred me to the State –v- Wayake Komane which was a wilful murder case that involved the killing of two young students of Sonoma Adventist College in Rabaul with a shotgun at point blank range which I heard in the early 1990’s. Since he did not indicate the length of sentence that I had imposed, I do not propose to rely on it. In any case he submitted that the present case was not among the worst wilful murder cases and as such the maximum penalty was inappropriate.

He further submitted that the maximum penalty be not imposed on the prisoner in this case because of the mitigating factors such as the prisoner’s lack of prior convictions, his expression of remorse, the murder was unplanned, there was provocation in the non-legal sense, he sustained injuries and payment of a large amount of compensation which included K6,000.00 in cash and 350 pigs which were specified in the Pre-sentence Report of the Probation Officer, Mr. Andrew Rai which he tendered.

I now have to decide whether I should impose the maximum penalty which is death or impose a lesser sentence which can range from a term of years to life imprisonment. Is this wilful murder among wilful murders that can be described as among the "worst type" of wilful murders?

I have analysed the facts in light of the submission in mitigation put to me by the Defence Counsel, Mr. N’dranoh and agree with him that this particular wilful murder and the circumstances in which it was committed is not among the worst wilful murder cases. It does not fall under any of the categories of wilful murder cases specified by Bredmeyer, J. in Ure Hane –v- The State (Supra). This wilful murder also does not fall under any of those wilful murders that are specified in my own list which I referred earlier in this judgment.

Upon my invitation to Mr. N’dranoh to indicate to me the appropriate penalty if I accepted that this case was not among the worst wilful murder cases, he submitted that a period of between 15 to 20 years would be appropriate.

In deciding the sentence I should impose, I have considered the sentencing principles as well as the mitigating factors put to me by Mr. N’dranoh and am of the opinion that an appropriate sentence for this wilful murder in the circumstances it was committed would be a period of 20 years imprisonment in hard labour which I so impose.

I deduct from that sentence the 1 year, 11 months and 4 days the prisoner has spent in custody awaiting trial which leaves 18 years and 26 days he has to serve in hard labour.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor