State v Kivini [2004] PGNC 195; N2576 (29 April 2004)

N2576

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 343 of 2004

THE STATE

-V-

ROGER KIVINI

POPONDETTA: KANDAKASI, J.
2004: 15th and 29th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Arguments correctness of charge, plea and conviction after administration of allocatus – No indication of prior notice on that – Discussion between counsel not binding on Court - No proper basis established to quash indictment, vacate plea and set aside conviction and administration of allocatus – Good practice for counsel to raise any objection at appropriate stage.

CRIMINAL LAW- Sentence - Wilful Murder – Chopping of sister’s neck using a bush knife – Provocation in the non-legal sense – Offence amounting to serious breach of trust - Guilty plea by first time offender – Prevalence of offence – deterrent sentence called for - Life imprisonment imposed – Criminal Code ss. 19 and 299.

Cases cited:
The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1.
Anton Yani v. The State (Unreported judgment delivered on 25/06/99) SC615.
The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076.
Nelson N. Ngasele v. The State (Unreported and yet to be numbered judgment delivered on 03/10/03) SC731.
Roger Jumbo and Aidan Awatan v. The State (Unreported judgment delivered 26/03/97) SC516.
Public Prosecutor v. Tom Ake [1978] PNGLR 469.
Avia Aihi (No.3) v. The State [1982] PNGLR 92.
The State v. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003.
Tony Imunu Api v. The State (Unreported judgment delivered on 29/08/01) SC684.
The State v. Yapes Paege & Relya Tanda, [1994] PNGLR 65.
The State v. Godfrey Edwin Ahupa (Unreported judgment delivered on 20/05/98) N1789.
The State v. Ian Napoleon Setep (Unreported judgment delivered on 31/10/96) N1478.
The State v. A'Aron Puli (Unreported judgment delivered on 22/12/03) N2488.
The State v. Ben Simakot Simbu (No. 2) (Unreported judgment delivered 25/03/04) N2546.
The State v. Ombusu, unreported National Court Judgment, dated 17th February 1995.
Ombusu v. The State[1996] PNGLR 335.
The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (per Woods J. in Kimbe) 7th February 1997.
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v. The State, (Unreported Supreme Court decision delivered on 04/05/00) in SCRA 10 of 1997.
The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332.
Simon Kama v. The State (Unreported judgment delivered on 01/04/04) SC740.
David Bawai Laiam & Ors v. The State (Unreported judgment delivered on 01/04/04) SC741.
The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244.
Allan Peter Utieng v. The State (Unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.

Counsel:
P. Kaluwin for the State
P. Kumo for the Accused

29th April, 2004

KANDAKASI J: You pleaded guilty to one charge of wilfully murdering your sister, a Faith Koemba at Soputa, here in the Oro Province on 5th December 2003.

Preliminary Issue

Following your guilty plea, I entered a provisional plea of guilty and asked for appearance on your behalf. Your counsel, Mr. Kumo announced his appearance and indicated that he had no application to make. Thereafter the State admitted into evidence the District Court Committal Depositions without any object from you. The Court read the evidence contained therein and proceed to confirm your guilty plea and convict you on the charge presented by the Court as there was sufficient evidence supporting the charge and your guilty plea.

After having convicted you, the Court administered your right to address the Court and you exercised that right. You said sorry for what you have done and asked for a lighter punishment. Once you finished, the Court called on your counsel to make his submissions on your behalf. Before making his submissions, your counsel indicated that he had a difficulty with regard to the indictment presented. He said the presentation of the indictment charged you with wilful murder and that took him by surprise because he anticipated an indictment for the lower charge of murder based on a discussion and agreement or understanding he reached with the Counsel for the State.

Your counsel did not make it clear as to the purpose of raising that. I presumed however, that he was asking for a vacation of the plea and conviction. In a bid to get further assistance, I asked your lawyer to draw to the Court’s attention authorities on the correct procedure to follow in the given circumstances of your case. He was not able to assist the Court with any authority. At the same time, the Court asked him why it was not possible to raise his concerns as or immediately upon the presentation of the indictment and the process, your case went through up until your own address on sentence. Counsel said he simply did not pay any close attention to the wording of the indictment as the State Prosecutor showed him a copy of it quickly. Otherwise, he did not provide any reasonable explanation as to why he could not raise his concerns soon after the presentation of the indictment, your arraignment, your plea, the Court considering the evidence against you and confirmation of your plea and finally the administration of your right to address the Court.

Counsel for the prosecution on the other hand drew the Court’s attention to The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 1 and Anton Yani v. The State (Unreported judgment delivered on 25/06/99) SC615. Then later summed up the legal position on the question of vacating a guilty plea in these terms:

"The law with regard to when a plea of guilty may be vacated is set out in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1. The principles set out in that case were endorsed and applied by the Supreme Court in Gabriel Laku v The State [1981] PNGLR 350. In so far as it is relevant to the present case, if an accused person makes a statement subsequent to his plea of guilty which may throw some doubt as to the correctness of his plea, a trial judge should clarify the matter with counsel for the accused person and satisfy himself of the matter before proceeding to confirm a plea of guilty."

I adopted and applied these principles in a number of cases, as in The State v. Joe Butema Arua (Unreported judgment delivered on 28/03/01) N2076.

In your cases, you did not say anything during the taking of your plea and your address before sentence, which contradicted your guilty plea. Instead, it is your counsel who said the presentation of the indictment charging you with wilful murder was contrary to an agreement or understanding the prosecuting counsel reached with him. Usually, the Court has no right to know what the parties discussed and agreed upon particularly in relation to a plea bargain. The Courts only see the result of any such agreement and proceed on what is before them.

Recently, the Supreme Court had a similar situation as in the present case in the case of Nelson N. Ngasele v. The State (Unreported and yet to be numbered judgment delivered on 03/10/03) SC731. There the appellant appealed against a conviction and sentence arguing amongst others that, the actual charge against him was different from what the police told him would be. In dismissing that argument, the Supreme Court said:

"It is settled law that the Public Prosecutor as an absolute power to decide and present whatever charge he considers the state will be able to prove against an offender. That power is not subject to any direction or control from or by anybody. Section 525 (1)(a) of the Criminal Code gives him that power. This has been acknowledged and affirmed by a number of judgments such as The State v. Jack Gola and Mopana Aure [1990] PNGLR 206 and The State v Jason Dongoma (Unreported judgment delivered on 13/12/00) N2038. See also The State v. James Gurave Guba (19/12/00) N2020 and The State v Peter Yawoma (Unreported judgment delivered on 19/01/01) N2032.

In your case, if indeed the police told you that you would be charged with one count of illegal use of a motor vehicle and one count of armed robbery. That did not and could not bind and prevent the Public Prosecutor from settling on and presenting the charges he preferred and did present against you. He was within his powers when he presented those charges against you. Accordingly, we dismiss this ground of your appeal as having no merit."

Having regard to these principles and authorities, the Court in your case declined to revisit the presentation of the indictment and all the process up to the point of your lawyer’s submissions. The fact that you through your lawyer did not take issue with the indictment at the time of its presentation, the arraignment, the taking of your plea also influenced the Court to arrive at that decision. In arriving at that view, I noted that the failure to take any objection at any of these stages meant that there was nothing wrong with the presentation of the indictment and all that happened based on it. Further, I also noted that, the material in the hand up brief did support the indictment, the charge, and your guilty plea.

Having decided the preliminary issue in that way, I proceeded to receive submission on sentence. For the purposes of your sentence, I will first consider the facts and then the offence, the sentencing trend and tariffs. Thereafter, I will arrive at a sentence for you.

Facts

According to your record of interview with the police and the facts as put to you during your arraignment starts with, you falling ill sometime before the date of the offence. You were sick for sometime and eventually got well. Apparently, you were not happy with your relatives because they did not care for you and failed to look after you. You therefore went to your sister, Faith Keomba (now deceased) who was in her house on the day of the offence. You approached her from her back with a bush knife and cut her on her neck, seriously severing her head from the rest of her body from the neck, with intend to kill her.

Other witness statements on file suggest that you had some dispute over a bank savecard relating to savings of income from your families block. This evidence also suggests that you used the bush knife to cut the deceased on her neck twice. You did this in the presence of the deceased daughter.

The medical evidence states that the deceased had a penetrating knife wound at the neck (posterior) at the level of Cervical Vertebrae 1 and Cervical Vertebrae 2 with the following features:

"1. 10cm width

2. 6cm length
3. 3cm depth
4. Cut through all layers, skin tissue, muscle
5. Fractured cervical bone
6. Spinal Cord cut and severed
   

PERTINENT FINDINGS

1. Penetrating knife wound over (the posterior aspect) of the neck at the Cervical Vertebrae 1 and Cervical Vertebrae 2 level.
2. Spinal Cord severed completely at Cervical 1 and Cervical Vertebrae 2 level.
   

MEDICAL OPINION

The deceased died of massive spinal shock and injury secondary to trauma."

Initially, you went into hiding after arming yourself with a spear. After staying away during the rest of the day and the night of the killing, you returned to the house. Thereafter, your brother’s sons took you to the police station and the police eventually had you arrested and charged for the killing of your sister.

There is clearly a variation in the evidence regarding the reason for your killing the deceased. The same goes for the number of cuts you executed against her. The law requires me to accept the version that is favourable to you. A number of authorities for example, Roger Jumbo and Aidan Awatan v. The State (Unreported judgment delivered 26/03/97) SC516 and Public Prosecutor v. Tom Ake [1978] PNGLR 469 support this proposition. Accordingly, I accept the version of facts put to you during your arraignment and the medical evidence.

Submissions

In your address on sentence, you said sorry to the Court, your in-laws and your family and asked for a lenient sentence. Your lawyer added to that by pointing out that, you are 43 years old and single. You reached grade six (6) education. You come from Garara, here in the Oro Province.

Further, your lawyer pointed out that, you have no prior convictions and that you pleaded guilty to the charge. This, he submitted was consistent with your cooperation with the police following the commission of the offence and your apprehension. He submitted furthermore that, you acted under provocation in the non-legal sense in that, you were not cared for when you fell ill. You felt abandoned and acted in the way you did.

With regard to the question of what is an appropriate penalty for you, you acknowledge through your lawyer that this is a serious offence, which carries death as its maximum prescribed penalty. Your lawyer pointed out however, that the prescribed maximum penalty is for the worse case of wilful murder and your case is not of the worse kind. He cited the Supreme Court judgment in Avia Aihi (No.3) v. The State [1982] PNGLR 92.

Your lawyer then drew my attention to my own judgment in The State v. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003. In that case, I imposed a sentence of 20 years after a trial. There, the prisoner shot from a close range his own cousin brother on his neck, which led to his death by the use of a shotgun.

Mr. Kaluwin of counsel for the State drew my attention to one of the most recent decisions of the Supreme Court, namely Tony Imunu Api v. The State (Unreported judgment delivered on 29/08/01) SC684. That was a case of a brutal murder of a schoolchild. He suffered multiple depressed fractures to the skull. On the left frontal area were a 3 cm diameter crepitus and a 4 cm crepitus on the right. On the left temporal area were a 10 cm cross-depressed fracture and a 6 cm fracture on the right side. There were multiple abrasions on the right shoulder and abdomen and other injuries. The Supreme Court of which, I was a member found that the case fitted a wilful murder charge and an imposition of the death penalty. As the State did not ask for an increase in the sentence, the Supreme Court confirmed the National Court’s sentence of life imprisonment.

The Offence and Sentencing Trend

I accept that the offence of wilful murder attracts under s. 299 of the Criminal Code, the death penalty. At the same time, I accept that age-old authorities like that of Avia Aihi (No.3) v. The State (supra) say that the maximum prescribed penalty is for the worse category of the offence under consideration. Recently, however this principle has been closely re-examined by a number of National Court judges, particularly in view of the fact that there is far more killings this days then it was in the earlier times.

The first of this was by Woods J. (as he then was) in The State v. Yapes Paege & Relya Tanda, [1994] PNGLR 65. There, His Honour gave detailed consideration to all of the authorities, which have come up with a classification or categorization of the offence of wilful murder or murder and asked appropriately in my view:

"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."

My brother Kirriwom J. made a similar remark in The State v. Godfrey Edwin Ahupa (Unreported judgment delivered on 20/05/98) N1789 where he said:

"... when you look at all these cases of deliberate and calculated murders, whether they involved pre-planning or not, whether they were carried out swiftly and quickly or slowly and in the most gruesome and barbaric or agonising manner, or whether the victims are gunned down, axed, knife or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated."

My brother, Justice Sevua spoke of the difficulty involved in classification of murder cases in The State v. Ian Napoleon Setep (Unreported judgment delivered on 31/10/96) N1478, in these terms:

"Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, in my view, to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."

Davani J, cited Sevua J.’s observations in The State v. A'Aron Puli (Unreported judgment delivered on 22/12/03) N2488 but only to support the proposition that unlawful killings take various forms and imposed a sentence of life imprisonment against the prisoner who only aided and abetted the killing of a schoolchild.

On my part, in The State v. Ben Simakot Simbu (No. 2) (Unreported judgment delivered 25/03/04) N2546, I considered the observations of Woods J., Kirriwom, J., and Sevua J and said at pages 10 to 12:

"As Woods J. observed correctly in my view, judges have had a much difficulty time trying to say when a willful murder is worse, and how they have avoided doing that. This is evident for example in Ure Hane –v- The State, ... where one Judge recited a list of different categories of willful murders and the other two focused on the extenuating circumstances.

Similarly, in the earlier case of Avia Aihi –v- The State,... whilst the members of the Court used the words "worst case type" or "most serious type of case," there as no listing of the worst type of cases. Each member, instead, referred to the surrounding extenuating or aggravating features and decided accordingly.

If anything, this difficulty in my view demonstrates the fact that the sanctity of life itself is not easily open to categorizations. As such, there is an abundance of difference of opinions as to what amounts to a worse case of willful murder, warranting the maximum penalty of death. It is thus possible that one judge could find a case to be a worse case of willful murder and another judge could easily come to a different conclusion, given that there is no fixed mathematical or scientific formula to go by. In so doing, the kind of sentences imposed may differ greatly.

Amidst this difficulty, there appears to be consistency in approaches by the Courts. A case with more aggravating features could qualify to be a worse case, whilst one with more factors in mitigation would be less serious, even though they will all be willful murder cases, where there is an intention to kill."

I then noted that Parliament increased the maximum penalty of life imprisonment to death for the offence of willful murder. Since then, I noted that the National Court imposed that penalty in three cases only. The first case was The State v. Ombusu, unreported National Court Judgment, dated 17th February 1995. On appeal, a five men bench Supreme Court quashed the National Court judgment on technical grounds: see Ombusu v. The State [1996] PNGLR 335.

The second one was in the case of The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, which was a decision of Woods J. in Kimbe on 7th February 1997. The appellants appealed to the Supreme Court in SCRA 10 of 1997 on 11th February 1997 against both conviction and sentence of death. However, after grant of legal aid, 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 delivered on 04/05/00) SCRA 10 of 1997, so the death penalty remains undisturbed.

The third and a recent one was the decision of his Honour Salika J. in The State v. Arua Maraga Hariki (Unreported judgment delivered on 3/02/03) N2332. In that case, the prisoner killed two young men with whom he had been drinking alcohol. He killed them by strangling their necks. The evidence did not directly show that the prisoner killed both persons but only one of them. However based on the circumstantial evidence before him, the learned trial judge found that the prisoner also killed the other deceased as well.

I also noted that, the Supreme Court judgment in Tony Imunu Api v. The State (supra), favoured the death penalty.

After carefully considering these judgments, I concluded in the, The State v. Ben Simakot Sibu (supra) at pp. 14 – 15 that:

A careful consideration of these cases and a general consideration of the past sentences in wilful murder cases, reveal an important trend. The offence of willful murder carried a maximum sentence of life imprisonment. This did not deter people who were inclined to killing committing the offence and was becoming very prevalent. Parliament therefore amended s. 299 of the Code and increased the penalty of life imprisonment to death. Despite this legislative change, no death penalties were imposed until The State –v- Ombusu,...when on 17th February 1995, Doherty imposed it for the first time. Not many judges followed that courage until The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, ... when Woods J imposed the death penalty for the second time almost two years later on 7th February 1997. Although many wilful murder cases have gone before the National Court, since then, the death penalty was not imposed until Salika J. decided to impose it in The State v. Arua Maraga Hariki ...

No doubt therefore, there has been great reluctance in the National Court to impose the death penalty. On the other hand, offenders have not shown any reluctance in committing serious wilful and other types of killing. Offenders appear to be finding it easier to readily commit wilful murders and get away with a determinate term of years to life imprisonment. There simply appears to be no deterrence by the kind of sentences in the majority of the wilful murder cases that have proceeded to trial and concluded with a sentence. In view of this the highest Court of the land in Tony Imunu Api v. The State,... has suggested that the death penalty should be seriously considered."

More recently, the Supreme Court of which I was a member took this point further in Simon Kama v. The State (Unreported judgment delivered on 01/04/04) SC740. There the Court had regard to all of the above and said at pp. 17 – 19:

"... [G]iven the ready commission and prevalence of the offence of murder coupled with serious aggravating circumstances in which some of them are committed, we consider the time has also come for this Court to seriously, reconsider the guidelines set by State v. Laura (No. 2)...and Simbe v. The State ... These guidelines were set in the 1980s and in the early 1990s. The circumstances in which those guidelines were set are no longer the same today. Further and more importantly, there is a lot of unnecessary and uncalled for killing today than it was before. Progressive increases in the sentences for this offence has failed to deter other would be offenders.

To the offenders, the lives of their victims have become so cheap but when it comes to a few years or life imprisonment for them for the taking away the life of another, their lives becomes so precious evidence by their ready appeals. Both this Court and the National Court, in our respectful view, have indirectly contributed to that view of the offenders by imposing far too lenient sentences as in The State v. Peter Plesman and Paul Moaina, ... which was a case of double murder of two brothers in their residential area. That case, in our view warranted the death penalty and falling short of that, life imprisonment. Similarly, we are of the view that the Public Prosecutor has contributed to this view of the offenders by his choosing to present indictments for lesser charges such as murder from wilful murder and manslaughter from either wilful murder or murder when there is clearly a serious case warranting a wilful murder or murder charges. Further, in our view, the Public Prosecutor has further encouraged such views of the offenders by failing to appeal or cross-appeal against clearly lenient sentences as in The State v. Peter Plesman and Paul Moaina...

In our view, this view of offenders have come about because of an apparent misapprehension that murder cases have different categories influenced by Bredmeyer J.’s classification of willful murder cases in Ure Hane v. The State ...

These guidelines have the tendency to suggest at first glance that, there are different categories of life, some of which are more important while others are not. It also has the tendency to suggest that, it is not a serious offence to kill a person in other settings. Therefore, one can get way with it by a sentence other than the prescribed maximum penalty. In our view, this demonstrates the fact that, it is a misconception to suggest that life has different categories and therefore, wilful murder, murder and manslaughter as different categories. This requires correction and we do so by stating that, it is a serious offence for a person to kill another person in circumstances not permitted by law. It does not matter who the deceased person was and or the reasons of his murder, except as may be provided for by law. Therefore, a sentencing judge should start approaching sentence with a serious consideration of the prescribed maximum sentence first in every case of murder."

The Court went on to say at pp. 21 -22:

"... [W]e are of the view that it is erroneous to classify murder cases except has is provided for by the Criminal Code as a starting point. The Criminal Code classifies different categories of murder in terms of wilful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor. A murder is wilful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements, it is manslaughter.

As already noted, there is now a prevalence of the offence of unlawful killings. This requires a close examination of sentencing approaches and before that the presentation of indictments. As we noted before, there are clear cases of serious wilful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. This is affecting the way in which sentence is approached. We therefore suggest (for we cannot direct) that the Public Prosecutor seriously consider and present indictments according to the dictates of the law and the particular facts in any given case, in the interest of protecting the community for which benefit, both that office and the criminal justice system exists.

On the Court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful."

In David Bawai Laiam & Ors v. The State (Unreported judgment delivered on 01/04/04) SC741, the Supreme Court, of which I was also a member, considered and approved the above principles in these terms:

"We reiterate the view that the unlawful taking away of another person’s life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra)."

As would be apparent from the above, the considerations leading to the sentence in The State v. AndrewKeake (supra), are now no longer appropriate but the recent thinking is, for the reasons adequately given in the foregoing discussion. With this in mind, I now proceed to consider an appropriate sentence for you in your case.

Your Case

In your case, your intention was to kill your own sister. You therefore went armed with a bush knife. You used that knife to inflict a very sever cut to her neck resulting in a deep knife wound measuring 10cm in width, 6cm in length and 3cm in depth. This wound cut through all layers, skin tissue, muscle, and even a fractured cervical vertebrae 1 and 2 bone with a complete severance of the spinal cord at the cervical vertebrae 1 and 2 levels. The deceased died immediately at the scene from the injuries you inflicted upon her.

You did not have a good reason to take away your sister’s life. You decided to kill your sister over what you claim to be a failure on the deceased and the rest of your siblings’ part to look after you when you were ill. Although there is generally an expectation for members of a family to look after the other members, it is not obligatory. It follows therefore, that if a member of a family fails to meet that obligation, it does not give rise to any right to the one denied raising arms against that person and coursing him or her harm as you did here. Hence, I find that you had no right whatsoever to do what you did. Instead, I find that you breached the trust family members place on each other that one of their own would not harm them, let alone take their life deliberately. The trust that family members or close friends and relations place on each other is critically important. It is critically, important because, there is already so much violence outside the family and close friends’ and other relations. There is already an increase in deaths in these units. As such, sterner punishments are required to help restore the trust and restore respect for the sanctity of life.

At the time of you attacking your sister now deceased, she was a married woman with children. There is no evidence of you having any second thoughts about that, particularly of the effects of your killing her. Her husband has no doubt, been denied a wife and her children were denied a mother for life. Nothing you can say or do will remedy that. You did not stop to consider any of these. Instead, it seems you were intend on your wish to kill the deceased and proceeded to execute it.

On your own side, you had no wife and children so it does not really matter. As such, you are in no position to appreciate the loss you brought upon the deceased husband and children. You were very selfish and thought only about what you failed to receive from the deceased even though, she was not bound to give you what you failed to receive, whatever it was. Besides, the Court does not know what kind of sickness you contracted that required the particular care and attention of the deceased and your other relatives. It therefore seems you have put up a lame excuse for the senseless and cold-blooded murder of the deceased.

The deceased was unarmed and according to other evidence on file, she was attending to her chores for that day in the kitchen when you approached and attacked her. There is no evidence of the deceased saying or doing something on the day of the offence or sometime shortly before than that could have caused you to attack her in the way you did. She did not fight with you. Further, you gave the deceased no opportunity to say her last prayers and to bid farewell to her husband and children. It was a cold-blooded murder of a very innocent woman. There were no good reasons, legal or otherwise to justify the killing but a killing by a coward who was desperate on getting some attention and care. Your actions show that you are not a strong man but a coward picking and choosing to kill an unarmed female rather than picking a man of equal strength to you.

The weapon you used was a very dangerous one. During the colonial times and the few years immediately after PNG’s independence, it was an offence to carry such a weapon except to use it for their proper purpose. Now, there is an abundance of the ready availability and use of this weapon. Many people are openly carrying them around even in public places and are readily using them to kill and or seriously injure other people.

There are so much unlawful and unnecessary killings these days then it was some 10 to 15 years ago. The days of cannibalism and self-help in some of the isolated societies in the country are gone. There are lot more schools, churches police and other law enforcing agencies throughout the country. You lived in an oil palm block here in Popondetta so there can be no excuse in terms of not being able to know that, what you set out to do was unlawful. You thus had every reason to know that, what you set out to do was illegal, and yet you did it any way.

Taking into account the reasons advanced in the authorities cited above, I am of the view that, the fact that you cut the deceased once does not render your case less serious. After all, it does not really matter whether it took one cut across the neck or more cuts to kill the deceased. Your intention was to kill the deceased and you did that by a single cut, which did the job, and there was no need for a further effort. At the same time, I note, that a slow, painful and torturous attack might be worse than a single blow, cut or a shot that renders no additional pain. Nevertheless, it does not in any way change the result. The dead person will certainly not speak from the grave as to which of the modes would be preferable and acceptable. What matters is the kind of force required to achieve the intended purpose. In this case, your intended purpose was to end a life prematurely for no good a reason and you achieved it by one fatal cut to the deceased neck with the use of a dangerous weapon.

Against these aggravating factors are, first the fact that you pleaded guilty to a serious charge of wilful murder. That saved the State and this Court the extra time and costs that would have been inevitable had you denied the charges. It also meant a saving of further pain and grieve that would have been forced on the deceased immediate family by a trial. In this regard, your expression of remorse does have some basis.

However, the expression of remorse itself without more is not sufficient in my view, to make a significant reduction on the sentence you should receive. This is because, there is ample authority for the proposition that, an expression of remorse without anything such as a payment of compensation means nothing: See The State v Fredinand Naka Penge (Unreported judgment delivered 24/05/02) N2244; Allan Peter Utieng v. The State (Unreported judgment of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000 and The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360. On the strength of these authorities, I find that your merely saying sorry means nothing. Accordingly, it is not a factor in your favour.

The only other factor in your favour is the fact that, you have no prior convictions. This means, you have not been in conflict with the law before and that this is the first time you have been in trouble with the law.

A careful consideration of both the factors for and against you convinces me that this is not one of the worse kinds of wilful murder. However, it does not mean that the offence and the circumstances in which you committed it less serious, because a life has been lost prematurely and unnecessarily. Hence, a sentence less than the death penalty but closer to it, namely life imprisonment is appropriate. I therefore impose that sentence.

In imposing the above sentence, I note that you are 43 years old and that imposing such a prolonged sentence could be crashing on you. Nevertheless, I note that, the aggravating factors as outlined above are serious enough to warrant such a sentence. In addition, I note that you will retain your life until your natural death as opposed to the tragic death you brought upon your sister, the deceased. Her husband and her children will miss a mother for life. Besides, I note, that this would be the consequence of your own actions.
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Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor