State v Pitaneoc [2004] PGNC 248; N2514 (12 March 2004)

N2514

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR. 246 & 247 of 2002

THE STATE

- vs -

WINGKEOC PITANEOC &

BOIYO KANINGA

Lae: Manuhu, AJ.

2004: 9 & 12 March

JUDGMENT ON SENTENCE

CRIMINAL LAW – wilful murder - sentence – ‘fixed’ and ‘maximum’ penalty – appropriate test – extenuating circumstances – life imprisonment – determinate 20 years sentence.

Cases cited:
Goli Golu v. The State [1979] PNGLR 653.
Hure Hane v. The State [1984] PNGLR 105.
Public Prosecutor v. Keru & Moro [1985] PNGLR 78.
Regina v Peter Ivoro [1971-72] PNGLR 374.
State v David Kana Mesu, (Unreported) N1883 Kirriwom J., 12 May 1999.
State v Eliesa Kopeia Madiroto, (Unreported) N1554, Sevua J., 20 March 1997.
State v Ian Napolean Seteb, (Unreported) N1478, Sevua J., 31 October 1996.
State v Otomo Onisa Yala & Ors [1995] PNGLR 431.
State v. Yakoto Imbuni & Ors, (Unreported), N1558, Akuram J., 14 March 1997.
The State v. Arua Maraga Hariki, (Unreported) N2332, Salika J., 3 February 2003.

Counsel:
Mr Gankarch, for the State.
Mr Mwawesi, for the first Prisoner.
Mr. M. Mumure, for the second Prisoner.

12th March 2004.

MANUHU, AJ: Prisoners Wingkeoc Pitaneoc ("Wingkeoc") and Boiyo Kaninga ("Boiyo") were convicted last week on 5th March for the wilful murder of Erenukac Ezawai ("Deceased Erenukac") and Bardie Saing ("Deceased Bardie") on 2nd November 2001 at Markham River ("River"). I must now determine their sentences.

The killing of the deceased persons was initiated by Boiyo. He and Bougena Saing ("Bougena"), the father of deceased Bardie, were disputing ownership of a certain cattle herd and customary land. For these reasons, Boiyo resolved that Bougena should be killed, and someone else, a younger and stronger man, should kill Bougena. Boiyo met and became acquainted with Wingkeoc between 2000 and 2001 when Wingkeoc went to stay with a Gilbert at Gubari Plantation. Whilst there, on 31st April 2001, Wingkeoc and Boiyo discussed the plan to kill Bougena. Sorcery materials were handed to Wingkeoc with specific instructions on how to use them. The purpose for the sorcery materials was to assist Wingkeoc evade detection when he carried out the killing. A contract was made during this discussion. Boiyo promised Wingkeoc that if Bougena was killed, a reward of K1,500.00 would be paid to him.

From that day on, Wingkeoc had been looking for ways and opportunities to kill Bougena. He visited Four Mile, a settlement outside of Lae, and got to know where Bougena’s house was. In his own evidence, Wingkeoc got to know Bougena well enough to visit and stay with him and his family in part of October 2001 until a day after the killings. Wingkeoc said he worked for Bougena and must have eaten and slept in Bougena’s house. During this association, Wingkeoc showed no indication of the secret plan to have Bougena killed.

Wingkeoc remained committed to the arrangement to have Bougena killed but he found it difficult to execute the plan. In fact, Bougena is a bigger man than Wingkeoc. According to Wingkeoc, he could not kill Bougena because Bougena had been good to him. This demonstrates how close Wingkeoc got to Bougena. Even then, he still wanted to earn the promised reward of K1,500.00. Wingkeoc saw his opportunity on 2nd November 2001 when Bougena and his wife were away. At 3.00pm, when it was already late for a swim at Markham River, Wingkeoc lured and led deceased Erenukac, 17 years old, and deceased Bardie, 11 years old, to go for a swim at Markham River. When they went, Wingkeoc killed them both at about 5.30pm. Deceased Erenukac died as a result of strangulation. Deceased Bardie died as a result of a fatal head injury. In the process of killing the deceased, Wingkeoc used the sorcery materials according to instructions taught by Boiyo. Whether it worked or not is beyond comprehension of a reasonable man. Wingkeoc then dumped the dead bodies into the river. The bodies of the deceased persons were discovered by Labu villagers at the delta of the river the next day.

Wingkeoc returned to Four Mile at about 6:30pm after killing the deceased persons pretending to be innocent but the hangover of the brutal killing of the deceased persons was evident in his perspiration, shivering and state of restlessness. He returned to Four Mile with the deceased person’s clothes to facilitate his futile explanation of how the deceased might have met their fate. Wingkeoc did not realise that the boys could not have gone home naked.

Wingkeoc was convicted under Section 299[1] for being a participant in the killing of the two deceased persons. Boiyo was convicted for initially having the reason, the motive, to have Bougena killed. He provided the sorcery materials to facilitate the secret plan. He secured an unlawful contract with Wingkeoc. He promised Wingkeoc that if Bougena was killed a reward of K1,500.00 would be paid to him. Wingkeoc acted on the basis of Boiyo’s instructions to kill the two deceased persons as substitutes for Bougena. Wingkeoc himself had no reason to kill Bougena or the deceased persons. It does not matter that different persons have been killed. Accordingly, Boiyo was convicted for the wilful murder of the deceased persons by virtue of Section 7.[2]

Under Section 299 (2)[3] a person convicted of wilful murder "shall be liable to be sentenced to death." When Papua New Guinea got its independence in 1975, the Criminal Code prescribed the death penalty for wilful murder. That was however abolished by an amendment by the Criminal Code (Amendment) Act 1976.[4] However, due to escalating law and order problems and crimes of violence, the lawmakers reintroduced the death penalty. Section 299(2)[5] was repealed and replaced by s 2 of the Criminal Code (Amendment) Act 1991.[6] In so doing, the people have spoken through their parliamentarians, 16 years after independence and only 13 years ago that death penalty is appropriate for the horrific crime of wilful murder. Death penalty for wilful murder is therefore not a foreign transplant into our criminal justice system. It is ours and it should be applied accordingly. See State v David Kana Mesu[7] and State v Otoma Anisa Yala.[8]

However, the courts have the discretion under Section 19 of the Criminal Code to impose a lesser penalty. Under Section 19(1)(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term. The exercise of this discretion is not dictated by feelings or personal views. It must be made judiciously and based on proper reasoning process.

At this stage, it is necessary to draw the distinction between a ‘maximum’ penalty and a ‘fixed’ penalty because whether a penalty is ‘maximum’ or ‘fixed’, in my view, determines the appropriate sentencing approach. The current death penalty for wilful murder, subject to Section 19[9], is a "fixed" penalty. Under Section 299 (2)[10] a person convicted of wilful murder "shall be liable to be sentenced to death." On the other hand, life imprisonment we had previously was the maximum penalty for wilful murder. This distinction is expressed by Kearney, J. in Goli Golu v. The State,[11] thus:

"Wilful murder has always been regarded as one of the most intrinsically serious of all offences. That is why, in most jurisdictions, it carries a fixed penalty; sometimes death, frequently life imprisonment. Under our Code it does not carry a fixed penalty; there is a maximum penalty of life imprisonment."

The death penalty, being a fixed penalty, means that all consideration of sentences for wilful murder always begins with the death penalty, and the only exit from the death penalty is Section 19. Consequently, I am of the view that the appropriate approach to sentencing in wilful murder cases is as established in Regina v Peter Ivoro[12]. In particular, it has to be established whether there are "extenuating circumstances such that it would not be just to inflict the punishment of death". There has to be "the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, but broadly, regard being had not only to moral considerations, but to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted." This approach was followed in, among others, The State v David Kana Mesu[13]and State v. Yakoto Imbuni & Ors.[14] I will also adopt and apply the same approach in this case.

Having said that, it is necessary to understand the types of circumstances that may be considered as extenuating circumstances. In Regina v Peter Ivoro,[15] extenuating circumstances, include: primitiveness, tribal custom demanding killing, lack of formal education, primitiveness, force of custom, ignorance, upbringing, obedience to tribe, lack of sophistication, remoteness, and youthfulness. Regina v. Peter Ivoro[16] is a pre-independence case so that these extenuating factors may not be relevant today. See for instance, Public Prosecutor v. Keru & Moro[17]. In recent times, reasons that have operated for or against imposition of death penalty include, among others, absence of such submission by the State, undesirability of a prisoner becoming a scapegoat for others in a group attack, prevalence of the crime, the law and order situation, vicious nature of attack, innocent victims, and worse case scenario. See for instance Hure Hane v. The State[18], Goli Golu v. The State[19], State v. David Kana Mesu[20], State v. Yakoto Imbuni & Ors[21], State v Ian Napolean Seteb[22], State v Eliesa Kopeia Madiroto[23], and The State v. Otama Onisa Yala.[24]

With guidance from the cases I have just referred to, I must now determine whether there are any extenuating circumstances such that it would not be just to inflict the punishment of death upon each of the prisoners?

Prisoner Wingkeoc is 30 years old. He comes from Tuwando Village, Boana, Morobe Province. He did not complete Grade One and virtually has no formal education. At the time immediately before the commission of the crime, he was residing between Gubari Plantation and Four Mile. He is single and a Lutheran follower. He is a first offender.

The prisoner began his statement in allocatus with an expression of remorse to God and the country. He apologised for wasting the court’s time. He apologised for pleading not guilty. He apologised to the relatives and parents of the deceased persons. He apologised to co-prisoner Boiyo adding that Boiyo is innocent. He apologised to the relatives and family of the co-prisoner and everyone, including the officers of the court. He asked the court for leniency and said he would accept whatever punishment that is imposed.

It is very sad that, not one but two young persons were wilfully murdered. Deceased Erenukac was 17 years old. Deceased Bardie was 11 years old. The deceased persons had a total of 92 years between them to live that have suddenly ended. And none of them know why their 92 years have been taken away.

"Life is only lived once. Once it is taken away the person ceases to exist. Life is therefore sacred. It should be revered, respected and preserved and every effort should be made to protect it."[25]

The deceased persons met their death after following Wingkeoc to Markham River. They knew Wingkeoc. Bougena had been good to him. He appeared as a friend to the family. He slept and ate with them. He was trusted by the deceased persons when they left for the river. When they went, Wingkeoc killed them both. Deceased Erenukac died as a result of strangulation. Deceased Bardie died as a result of a fatal head injury. In the process of killing the deceased, Wingkeoc used the sorcery materials according to instructions taught by Boiyo. Wingkeoc then dumped the dead bodies into the river. Wingkeoc returned to Four Mile pretending to be innocent. It is heartbreaking when two boys, who looked forward to enjoying the swim, must be killed by someone they trusted and looked upon for protection on that day.

Wingkeoc killed the two boys in accordance with the secret agreement he had with Boiyo on 31st April 2001. Wingkeoc had six months within which to opt out of the agreement, but he did not. He was promised a reward of K1,500.00 that seemed more important to him than the lives of two completely innocent boys.

Contract killing could be a new trend of wilful murder in Papua New Guinea. We hear about organised crime but I have not heard of such a case coming to the courts. I have heard of organised killing where others are hired to kill others. I dealt with a bail application last year where the facts disclosed that the applicant, charged for wilful murder, hired someone to kill the victim in that case. This may be the first time that such a case has come before the courts.

It is frightening that people can use money to hire others, who themselves have no reason to kill anyone, to kill others. Hired killers are people who have no regard at all for the sanctity of life. Money seems more important to them. That is the case here. Wingkeoc killed the two boys because he wanted K1,500.00. It is even more frightening that a would-be killer could lodge and dine with you without you knowing.

Wingkeoc is a first time offender but what good can one get out of a man who had to kill two innocent boys for K1,500.00. Wingkeoc cooperated during the conduct of the record of interview. Without his admission, he might have been acquitted. But he disowned his record of interview and was convicted after a trial. He does not have any formal education but he appeared to me to be reasonably civilised to know what he was doing. He had been living at Gubari Plantation and Four Mile and had access to Lae City. He spoke pidgin well and appeared to me to be intelligent.

Everything I have said so far goes against prisoner Wingkeoc. In other words, I have not yet found any extenuating circumstance that will assist him avoid the death penalty. However, whilst totally inexcusable, if Boiyo had not offered the reward of K1,500.00 and the sorcery materials to avoid detection (which apparently did not work out), Wingkeoc might not have committed the murders. The prisoner is entitled to benefit from this possibility. I find this to be a significant extenuating circumstance in Wingkeoc’s favour. This factor was the difference between life and death. Boiyo was the difference between life and death of the two boys. The boys would not have been killed if it was not for Boiyo. And for that reason, I will not impose the death penalty on Wingkeoc.

That being the case, I must now determine whether I should impose life imprisonment or other determinate sentence. In that regard, there are no other factors I can rely on to reduce the sentence any further. Besides, this is a case of double murder, which according to Hure Hane v. The State[26] is among the worst type of wilful murders. In addition, I find the circumstances of this case to be worse than those in The State v. Arua Maraga Hariki,[27] where death penalty was imposed. Consequently, I am unable to venture below the sentence of life imprisonment.

In all the circumstances, I impose a sentence of life imprisonment on prisoner Wingkeoc.

Prisoner Boiyo is about 64 years old. He comes from Biriman Village, Boana, Morobe Province. He attended a Tok Ples school in 1952. He worked for one year at the Didiman Boana Mission Station. From 1957 to 1962, the prisoner worked at the then Department of Primary Industry, Three Mile, Lae. Between 1962 and 1972, the prisoner worked at Hobu Farm in Lae. From 1973 until the time of arrest, the prisoner was at Gubari Plantation. The prisoner is married and has an adopted child who is about 12 years old.

The prisoner expressed remorse for the killing of the two boys. He acknowledged the conviction and apologised. He apologised to everyone. He said he was a good person until his conviction. The prisoner then tendered three documents. In his own letter he expressed further remorse and continues his plea of innocence. He blames his conviction on co-prisoner Wingkeoc. He asked the court to acknowledge his age and that he would die soon. He said he had never been in court, was a leader and businessman. A letter under the letterhead of Mamasi Parish, Evangelical Lutheran Church of Papua New Guinea, states that the prisoner was a regular church goer at Hobu. At the time of his apprehension, the prisoner was the church treasurer. Another letter is from Keysser Lutheran Church, Tent City, Stage 3, Bumayong. The letter asserts that the admission by Boiyo was made when he was assaulted by Bougena and his relatives. The letter asserts that Boiyo did not commit the killing and should be released on probation.

Prisoner Boiyo is entitled to his insistence that he is innocent. Prisoner Wingkeoc supports him. Keysser Lutheran Church also supports Boiyo in this regard. Unfortunately, I have convicted Boiyo and am satisfied beyond reasonable doubt that Boiyo was involved as found.

I have stated that Boiyo was convicted for initially having the reason, the motive, to have Bougena killed. He provided the sorcery materials to facilitate the secret plan. He secured an unlawful contract with Wingkeoc. He promised Wingkeoc that if Bougena is killed a reward of K1,500.00 would be paid to him. Wingkeoc acted on the basis of Boiyo’s instructions to kill the two deceased persons as substitutes for Bougena. Whilst Boiyo did not execute the killing and was miles away from the river where the killing took place, what Wingkeoc did was commissioned by Boiyo. Boiyo and Wingkeoc became the perfect murder equation. The killings would not have occurred if one of them is removed from the equation. Boiyo had six months to terminate the secret plan but he did not. He cannot now divorce himself from the death of the two boys.

I am told that Boiyo’s plantation at Gubari which held 4,000 cocoa trees was destroyed by the relatives of the deceased persons. The plantation has since been repossessed by the Rural Development Bank. This, however, is not a mitigating factor. He must have known that if he is caught, he is likely to be in jail and, his plantation would still be repossessed. Boiyo, at 64 years, is a very old man. He has lived beyond the normal life expectancy of Papua New Guineans. I note that he is already talking about his death. Age is not a mitigating factor in wilful murder cases but it is more likely than not that Boiyo will die in jail.

In the end, Boiyo’s culpability is the same as Wingkeoc’s. The killings were his desired outcome. However, it cannot be ignored that first Boiyo did not physically kill the two boys. At 64 years, Boiyo posed no threat to anyone’s life. Secondly, Boiyo commissioned Wingkeoc to kill only one person. The termination of two lives was Wingkeoc’s own modification of the plan to kill Bougena.

In all the circumstances, I am satisfied that there are sufficient extenuating circumstances that will assist the prisoner avoid the death penalty and life imprisonment. I am of the view that a determinate sentence of 20 years is appropriate. The custody period of 2 years, 4 months and 2 weeks is deducted. The prisoner has 17 years, 7 months and 2 weeks to serve in light labour.

Sentenced accordingly.
_______________________________________________________________________
Lawyer for the State : Public Prosecutor.
Lawyer for the Accused : Public Solicitor.

---

^[1] Criminal Code
^[2] Ibid.
^[3] Ibid.
^[4] Act No 2 of 1976.
^[5] Criminal Code.
^[6] Act No 25 of 1991.
^[7] Kirriwom J, 12 May 1999.
^[8] [1995] PNGLR 431.
^[9] Criminal Code.
^[10] Ibid.
^[11] [1979] PNGLR 653.
^[12] [1971-72] PNGLR 374.
^[13] Per Kirriwom, J. (Unreported), 12 May 1999.
^[14] Per Akuram, J. (Unreported), 14 March 1997.
^[15] Ibid.
^[16] Ibid.
^[17] [1985] PNGLR 78.
^[18] [1984] PNGLR 105.
^[19] Supra.
^[20] Supra.
^[21] Supra.
^[22] Per Sevua J, (Unreported) N1478 ,31 October 1996.
^[23] Per Sevua, J. (Unreported) 20 March 1997.
^[24] [1995] PNGLR 431.
^[25] The State v. Arua Maraga Hariki, per Salika, J. (Unreported) 3^rd February 2003.
^[26] Supra.
^[27] Supra.