State v Luna [2002] PGNC 131; N2205 (20 May 2002)

N2205

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 933 OF 2001

THE STATE

-v-

TUMU LUNA

Wabag : Jalina, J.
8th & 20th May 2002

CRIMINAL LAW – Particular offences – Wilful murder – Sentence – Deceased shot with a gun – Conviction following a trial – Whether this wilful murder among worst category of wilful murders – This wilful murder not amongst worst category of wilful murders – Maximum penalty of death not appropriate – Life imprisonment appropriate – Criminal Code s.299 (2).

Papua New Guinea cases cited:
The State –v- Ombusu, Unreported National Court Judgment, by Doherty J. dated 17th February 1995.
Ombusu –v- The State [1996] PNGLR 335.
The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, Unreported Decision of Woods J. dated 7th February 1997.
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa –v- The State, Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4th May 2000.
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.
The State –v- John Wayake Komane and others [1992] PNGLR 524.

The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65.

The State –v- Eliesa Kopeia Madiroto [1997] Unreported National Court judgment No. N1554 dated 28th March 1997.

Counsel:

S. Kesno for the State
P. N’dranoh for the Prisoner

20th May 2002

JALINA, J.: This prisoner was convicted of wilful murder following a trial. His defence that he mistook the deceased for a pig when he shot him with a gun was found to have been successfully negatived by the State. The rest of the facts appear in the evidence of witnesses whose statements were tendered by consent or who gave oral evidence during his trial and as such I do not consider it necessary to repeat them here. He now comes before me for 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. The first case was The State –v- Ombusu, Unreported National Court Judgment, dated 17th February 1995 in which Doherty J. imposed the death penalty on a Popondetta man for wilful murder. On appeal by the prisoner to the Supreme Court, a five-men bench comprising, Amet CJ., Kapi DCJ. and Los, Injia and Sawong JJ. quashed the National Court Decision on technical grounds (see Ombusu –v- The State [1996] PNGLR 335, The other case was The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, which was the decision of Woods J. in Kimbe on 7th February 1997. The appellants appealed to the Supreme Court [SCRA 10 of 1997] on 11th February 1997 against both conviction and sentence of death. After grant of legal aid however, the Public Solicitor filed a supplementary Notice of Appeal on 23rd July, 1997 in which he appealed against conviction only.

The Supreme Court comprising Amet CJ., Kapi DCJ. and Sevua J. dismissed the appeal against conviction on 4th May, 2000 (see Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa –v- The State, Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4th May 2000), so the death penalty remains undisturbed. It would be interesting to see what the prisoners do next against such a penalty or the State does next to give effect to the intention of Parliament in prescribing the death penalty for wilful murder. 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 Goli Golu –v- The State [1979] PNGLR 653 that:

"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 92 the Supreme Court held that:

"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".

Two years later 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 his submission in mitigation of sentence, Mr. N’dranoh has referred me to a number of cases, which dealt 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 except for the case of The State –v- John Wayake Komane and others [1992] PNGLR 524 which I have not cited above. That was a wilful murder case which involved the killing of two young students of Sonoma Adventist College outside Rabaul with a shotgun at point blank range where I sentenced the principal offender John Wayake Komane to 20 years imprisonment instead of death as I did not consider it to be among the worst wilful murders. The other case he referred me to was The State –v- Tau Ted Lahui & 2 Ors [1992] PNGLR 325 but it has no relevance to the case before me, as the charge in that case was not wilful murder but murder.

Mr. N’dranoh has also referred me to about eight categories of wilful murders, which Bredmeyer J. listed as falling among the worst categories of wilful murders in Ure Hane –v- The State (supra) at p. 107-109. 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.

He has submitted that the wilful murder in the present case does not fall under any of the above categories and as such it is not among the worst wilful murder cases so as to justify the imposition of the maximum penalty of death. He further submitted that the prisoner’s expression of remorse, his lack of prior convictions, payment of compensation in the form of 36 pigs and K1,753.00 in cash and that there would be no one to care for his 5 children that the maximum penalty be not imposed.

With regard to Mr. N’dranoh’s submission based on the personal antecedents of the prisoner, I am of the view that it does not carry much weight in the face of a very serious offence such as wilful murder, particularly in this case where there was no explanation from the prisoner during trial or during the allocutus after his conviction as to why he shot the deceased.

Mr. Kesno for the State has conceded that this particular wilful murder does not fall under any of the categories of wilful murders listed by Bredmeyer J. in Ure Hane’s case. He has however, submitted relying on Sevua J.’s remarks in The State –v- Eliesa Kopeia Madiroto [1997] Unreported National Court judgment No. N1554 dated 28th March 1997 in Alotau, that the principles enunciated in cases such as Goli Golu, Avia Aihi (No. 3) and Ure Hane were formulated some 18 to 20 years ago when the maximum penalty was life imprisonment. Consequently, I should consider this case as one of those cases referred to by Sevua J. when sentencing the prisoner who pleaded guilty to the wilful murder of an old woman in a most tragic manner. In that case the prisoner dragged the deceased out of her house in her garden, burnt the house down, belted her, pulled her down to the creek and threw her onto the stones and then bumped her forehead against the stones. As if that was not enough, the prisoner continually stoned her on her forehead after which he squeezed her throat and then submerged her head in the pool of water until she died. His Honour said:

"In the case of Ure Hane, Bredmeyer J. categorised different types of the more serious cases of wilful murder, however, with respect, these have changed since this decision was made some 13 years ago. There are now, in my view, certain classes of wilful murder that fall into the most serious categories of wilful murder that are not mentioned in that judgment. I consider therefore that, that decision needs to be reviewed in the light of some of the most serious homicides occurring in the country recently and the present time.

I consider that all wilful murder cases are very serious because they involve intention or are intentional homicides. In the present case, there is no doubt about the prisoner’s intention. He tried to raise de facto provocation, however, there had been a time lapse of 4 to 5 hours from the alleged de facto provocation, before he set out in a murderous rage to kill the deceased. His intention was manifested in the manner in which he brutally attacked the deceased, which in my view warrants the maximum death penalty, if not life imprisonment.

I have seriously considered imposing the death penalty in this case. Initially, I thought I should further adjourn this matter for a few more months so I could have more time to consider and evaluate whether the death sentence should be passed. However, the prisoner has already been convicted and is entitled to a pronouncement of sentence without further delays. His Counsel has urged the Court not to impose the death penalty and the State has not demanded it. I have considered all these and other matters I have not referred to in my reasons."

With regard to the payment of compensation in the form of 36 pigs and K1,753.00 cash, Mr. Kesno submitted that such payment was made to the whole tribe and not to the deceased’s immediate family. Such payment was made to the deceased’s maternal uncles to avoid a tribal fight. All in all Mr. Kesno submitted that this case should be treated on its own merits bearing in mind that in the Enga Province this type of killing is common and that one must have respect for the sanctity of human life and respect for the rule of law. He submitted that in this province where there is a blatant disregard for human life, the imposition of the maximum penalty would act as a deterrent that taking someone’s life without lawful justification entail very serious consequences. In other words, the State Prosecutor, Mr. Kesno, strongly submitted that the maximum penalty be imposed unlike the State Prosecutor in Madiroto’s case above who did not seek the maximum penalty.

I have considered both submissions and I must say at the outset that I do not, with respect, propose to follow Bredmeyer J.’s list as it does not reflect the decision of the full bench of the Supreme Court nor does it reflect the views of the majority in that case but is merely obiter dicta.

Although he did not refer me to it, the views expressed by Mr. Kesno were expressed by one of our former senior judges namely Woods J. in The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65. In that case His Honour held that whilst the killing was an example of disorder and disrespect for the sanctity and dignity of human life, and therefore, the death penalty provided for in s.299 of the Criminal Code could be considered, the Public Prosecutor’s plea against the death penalty should be taken into account. Consequently, His Honour imposed a sentence of life imprisonment instead of death where the deceased was chopped to death in an ambush situation. He was attacked when he went out of his house to investigate some disturbances.

For convenience as well as for better understanding of the reasons underlying arguments in favour of the death penalty, I quote almost the entire judgment from pp. 65-69 where His Honour (Woods J.) said:

"The penalty laid down in Criminal Code s.299 for wilful murder is death. So, initially there is no range of sentence for this offence, such as is implied by the words "not exceeding," as used in the penalty section of many of the other provisions of the Criminal Code. And the Court must now be mindful of the fact that the Parliament brought in this penalty by deliberate consideration in 1992, so it is not as though it is a penalty that can be regarded or disregarded lightly. The Members of Parliament meant it.

Of course, Parliament has also said that the Court can act under s. 19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s. 299 is not mandatory. There is some discretion. However, this discretion under s. 19 cannot be an automatic moderation of the law. The application of s. 19 must require appropriate circumstances, but it cannot mean there is a very wide discretion within the range of one-year imprisonment to life imprisonment to death. Surely, if there was this automatic wide range, this would have been included in s. 299 itself. By putting it specially in s. 19, it suggests something special. Other aspects of s. 19 are considered by Judges, such as where there is a plea of guilty, where there is a young offender, where there has been remorse and an attempt at compensation or paying back for the problem caused.

Generally, the application of punishment by the Court is a matter of applying a sentence within a range depending on the severity of the offence. Thus, as I have already referred to above, most penalty sections of the Criminal Code use the words "not exceeding." These words are a clear direction to make the punishment fit the severity of the crime. And, of course, most crimes do permit consideration of a range of severity. Thus, assaults and grievous bodily harm do have a range of severity of the actual injury caused. There can be degrees of rape, such as whether it is multiple pack rape or a single perpetrator, and also whether further bodily injury is caused in addition to the act itself. In stealing, there is the difference between the snatching of a few kina to the careful misappropriation of thousands of kina of public money over a period of time. There can even be degrees of manslaughter or, in layman’s recklessness, such as between an accidental kicking in the stomach or spleen and the knifing in a tavern brawl.

But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killings – murder and manslaughter – lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life.

Some Judges have talked of more serious categories in various cases, but usually that has been by individual judges and not by the whole Bench. Also, it has been obiter in cases of pleas of guilty where an immediate extenuating circumstance is present. Thus, in the case Hane –v- The State [1984] PNGLR 105, one Judge recited a list of different categories of wilful murders. But at the end of that case, the consideration of the two other Judges was that the plea of guilty was the extenuating circumstance, plus the highly charged domestic history, which had not been properly considered by the first Judge. And, of course, even if one looks at the categories of wilful murder listed by Bredmeyer J. in that case, it could be argued that this wilful murder before me now appears to come within one of the worst categories, namely, a payback killing of a completely innocent man.

In Aihi –v- The State [1982] PNGLR 92, whilst the members of the Court used the words "worst case type" or most serious type of case," there was no listing of the worst type of cases. Each member, instead, referred to the surrounding extenuating or aggravating features and decided accordingly. The then Chief Justice said at p. 96, "What is ‘the most serious type of case’ of any offence is very difficult to define with scientific precision. I cannot attempt a definition myself." At the end of that case, the Supreme Court affirmed the maximum penalty.

Applying what I see as the limited discretion allowed for in s. 19, there is no doubt that the Christian principles embodied in the Constitution would let me impose a term of years where there has been truth and contrition, such as in a plea of guilty. And as suggested in the Hane case referred to above, the Court could apply some discretion in a difficult domestic situation. But in the case before me, there has been no contrition, there has been no plea of guilty, there was no special domestic circumstances. Instead, it was a cold-blooded ambush attack, of which we have been having too many in this particular area of Papua New Guinea and for which it is highly probable that the Parliament was thinking when it amended the penalty in 1991.

It may be suggested that the death penalty is in conflict with certain principles of the sanctity of human life, as embodied in the Constitution. However, the Constituent Assembly, acting as the spokesperson for the people of Papua New Guinea, deliberately provided for the death penalty in the Constitution ss. 35 and 36.

"Section 35 Right to life.

(1) No person shall be deprived of his life intentionally except –

• (a) in execution of a sentence of a Court following his conviction of an offence for which the penalty of death is prescribed by law..."
  

"Section 36 Freedom from inhuman treatment.

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2) The killing of a person in circumstances in which Section 35 (1).

• (a) (right to life) does not, of itself, contravene Subsection35 (1) although the manner or the circumstances of the killing may contravene it.
  

So, Parliament has clearly provided for the sentence of death in the cultural and social circumstances of the country. And what can be so anathema about that. The circumstances of this case and of so many other cases the Court has seen over the years suggest a very casual attitude to life. There are many cases of the deliberate setting out in gangs to kill someone from an enemy line or to ambush someone. Just last week, I had another case of a 15-year-old boy from the same area of Enga in a group axing an 11-year-old boy to death in an ambush situation where the victim’s family were completely surprised at their home. And a couple of years ago, again from the same area, some men were returning from a fight and saw a girl of the opposing line working in a garden, so they chased her and chopped her to death. And just his week, I had another case of a man being ambushed at night near his home near Wabag and chopped to death by four men. These are just some of many such deliberate killings from this part of the country, and this continual behaviour is making the whole province suffer with the breakdown of law and order, interruptions to schooling, and the continual hindrance to the growth of business activity.

Twenty years ago, judges were considering in wilful murder situations in tribal conflicts that there may be a partial cultural justification for this sort of killing, which reduces the defendant’s culpability or level of moral blame worthiness; for example, see R –v- Kilape [1973] No. 763. In another case, consideration was given to the defendant’s ignorance of the ways of government, their upbringing, and the strong tribal traditions which have until now controlled their life and which require these killings. Those were all circumstances, which were proper to take into account into determining the question of sentence.

However, how can that be seen to be relevant now in places like Laiagam, where there has been a history over the past 10 years of police action to try and curb tribal fights, where the road is busy with modern traffic and modern business, and where schools have been operating for years and people have been benefiting from the modern advantages synonymous with the modern wealth flowing down from Porgera and Mount Kare?

Parliament has clearly shown their concern at these continual tribal fight and ambush killings and ordered that the punishment is death. This Court cannot ignore that law. And considering the history of violence and similar killings in that area, I have some difficulty in finding the existence of appropriate circumstances, which allow the exception, provided for in s. 19.

Whist the Public Solicitor has pleaded for a lesser penalty, so also has the Public Prosecutor submitted strongly against the maximum penalty of death, suggesting that, in spite of the long history of violence from that area of the country, this case is not a worst-case scenario. As I have already said, I have difficulty with this further categorisation of deliberate killings. There are already three degrees of unlawful killing – wilful murder, as found in this case, and two others, murder and manslaughter – which can incur a maximum punishment of life imprisonment. Bu the State, through the Public Prosecutor, still submits that there are degrees of intentional killing, where other matters of extreme violence or more disregard for human life is evident, such as, for example, a destruction of a machine with many passengers, or raping a victim to death with degrees of violence during the assault and before the death. I have already asked the question, is there any difference when a man is killed by one bullet or four? The State says yes, there is a difference in degree, and this is part of the discretion allowed for in s. 19. The State also presses that this killing arose out of some domestic family argument between the lines, all of whom knew each other, so there was no innocent stranger.

The case Golu –v- The State [1979] PNGLR 653 makes a considered reference to Veen –v- R [1979] HCA 7; [1979] 53 ALJR 305, an Australian case where Mason J., in the High Court, said at 309:

"The Court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted..."

Should not such matters be extended in the Papua New Guinea context by reference to the continual extreme level of violence in this area of the country, which is making good government for the majority of the people impossible? However, the Public Prosecutor is strongly submitting that this does not make it a worst type case.

I see this case as just another example of the disorder and disrespect for the sanctity and dignity of human life, as emphasised in the Constitution. Such attitudes continually undermine peace and good order throughout areas of the country. Therefore, the penalty of death, as provided for in s. 299, could be considered."

In the present case the deceased died from a single shot from a homemade gun. This is confirmed in the Medical Report. Although there is no post mortem report, the fact that the prisoner admitted shooting and killing the deceased is sufficient in my view.

Furthermore, from the uncontradicted evidence of Enga Timbu, that he heard the deceased call out "brother, please leave me," before he heard the shot, there cannot be any doubt that the prisoner shot the deceased in cold blood and without mercy.

In deciding the sentence I should impose, I repeat what I have said earlier that his lawyer’s submissions based on his (the prisoner’s) personal antecedents including his lack of prior convictions and his expression of remorse do not carry much weight in the face of a very serious crime as wilful murder. In fact, to my mind, expression of remorse after conviction following a trial loses its significance. It does not, in my view, indicate true remorse and contrition; not when someone tries to hide his involvement but after he is found guilty, he says sorry for what he had done. If an accused person pleads guilty however, and then says "sorry" his expression of "sorrow" would appear to me to be from deep within his heart.

I also agree with the submissions by Mr. Kesno regarding payment of compensation that it was done more to avoid a conflict on a greater scale between their respective tribes than as a sign of true sorrow and contrition for killing the deceased. With due respect, in this part of the country compensation is paid quickly particularly following a death or injury to someone to avoid payback than anything else. Very seldom is compensation paid quickly as a sign of true remorse and contrition.

Notwithstanding what I have just said, and the sentiments expressed by Woods J. in The State –v- Yapes Paege & Relya Tanda above in favour of the death penalty as well as the forceful submissions by Mr. Kesno along the lines proposed by Woods J., I am of the opinion that the manner in which the deceased was killed in this case was not as brutal as in Madiroto’s case. I therefore do not consider it to be among the "worst" wilful murders and as such the maximum penalty is not warranted in the circumstances.

However, to echo the society’s condemnation of someone’s life having been taken prematurely and to sound a warning to others particularly people in this province where blatant disregard for human life and limb is prevalent as is clear from the cases referred to by Woods J., and the number of homicide and personal injury cases which I have dealt with since I arrived in this province almost three years ago, and that such behaviour cannot and should not be tolerated, I sentence the prisoner to imprisonment in hard labour for life.

May I also send out a warning that I would not hesitate to impose the maximum penalty of death in an appropriate case in future.

_____________________________________________________________________
Lawyer for the State - Public Prosecutor
Lawyer for the Prisoner - Public Solicitor