State v Lati (No 2) [2009] PGNC 121; N3740 (17 July 2009)

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CONSTITUTION – How Constitution regards human life – Preamble states: respect for dignity of the individual is basic principle of society – subject to any restrictions imposed by law, all persons are entitled to fundamental rights and freedoms regardless of race, tribe, place(s) of origin, political opinion, creed, or sex – right to life is a fundamental right, listed first among all other fundamental rights.

CRIMINAL LAW – Section 299 wilful murder – prescribed maximum penalty is death, subject to Section 19 Criminal Code.

CRIMINAL LAW - Prisoner found guilty of willful murder after trial – Prisoner used pump action shot gun and shot dead his own adopted son, adopted at 3 months old from his wife’s elder sister – motivation of the crime – to own deceased’s town land.

CRIMINAL PROCEDURE – Appropriate sentence – Maximum penalty is preserved for worse case – Legislature has not prescribed types of willful murder cases that warrant death penalty – hard for Court to lay down universal sentencing principle and apply in willful murder cases – each case be determined on its own merits – Court consider aggravating factors, extenuating circumstances and mitigating factors – special aggravating circumstances far outweigh mitigating circumstances –maximum penalty imposed – Death.

1. In enacting our Constitution we have in the Preamble asserted that the respect for the dignity of the individual; and we have acknowledged that subject to any restrictions imposed by law, all persons are entitled to the fundamental rights, whatever their race, tribe, place(s) of origin, political opinion, creed, or sex, the first of which is the right to life, are not just bare and meaningless statements, but they are words we have given legal force and meaning by Section 35 of the Constitution.

2. Willful murder is not just a mere breach of Section 299 of the Criminal Code Act Chapter 262 but is also a serious breach of Section 35 of the Constitution, a much higher law of the land.

3. In considering whether or not the maximum penalty of death should be imposed for willful murder the court’s consideration starts with the highest penalty and taking into account the particular circumstances of the case determine whether the maximum or a lesser penalty is warranted: State v Hungi Koeskapi (2004) N2654.

4. As to what particular circumstances of willful murder may warrant the maximum death penalty is an issue that may be settled over time as we gradually develop our jurisprudence, unless the Parliament prescribes those circumstances.

5. Where the particular circumstances of a willful murder case warrants death penalty but those circumstances of the particular case do not fall into anyone of the established categories, the Court is not prevented from imposing the maximum death penalty.

6. Willful killing of a child by the parent in a premeditated, heartless, senseless, vicious, brutal and cold blooded manner in order to acquire the child’s property or propriety rights is a new category of willful murder warranting death penalty. (Ure Hane v State [1984] PNGLR 105; Manu Kovi v The State [2005] SC78; Ume v The State [2006] SC836; Charles Ombusu v The State [1996] PNGLR 335 and Tony Imunu Api v The State (Unreported Supreme Court judgment) (29.08.01) SC684).

7. The prisoner is sentenced to death in accordance with Section 597 of the Criminal Code and his sentence shall be carried out at a time and place to be appointed by the Head of State, acting on advice, and that he shall be hanged by the neck until he is dead.

Ure Hane v State [1984] PNGLR 105
Manu Kovi v The State [2005] SC78
Ume v The State [2006] SC836
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Tony Imunu Api v The State (Unreported Supreme Court judgment) (29.08.01) SC684.
State v Yapes Paege & Relya Tanda [1994] PNGLR 65
State v Ombusu (Unreported and Unnumbered National Court Judgment) (Doherty J) (17.02.95)
State v Stephen Loke Ume Charles Patrick Kaona and Greg Wawa Kavoa (07.02.97) (Unreported and Unnumbered National Court Judgment)
State v Arua Maraga Hariki (03.02.03) N2332
State v Langa (No 2) [2003] N2462
State v Ben Simakot Simbu (No 2) (2004) N2546
State v Hungi Koeskapi [2004] N2654
State v Mongi [2007] N3259
State v Titus Aiko [2008] N3324

1. YALO AJ: On 26 March 2009 the Court found Mr. Ambrose Lati, the Prisoner, guilty of willful murder pursuant to Section 299 of the Criminal Code Act Ch 262 (Criminal Code). The maximum penalty prescribed by the Criminal Code for willful murder is death, subject to Section 19 of the same Act. Mr. Lati appeared from bail to receive the verdict. Having found him guilty of willful murder of his step son Jumbo Ambrose the Court ordered him to be held in custody. On 28 April 2009, Counsels for the State and the Prisoner made submissions on sentence. The Court reserved its judgment on sentence to a date to be advised and it adjourned sine die to such date. This is the date and this is the Court’s ruling on sentence.

2. Ms Ake Nepawan lived on Beat Street in Wabag Town. She had two daughters, Lina and Lucy. The elder daughter Lina gave birth to Jumbo. When Jumbo was three months old his mother Lina gave him up to her sister Lucy for adoption. Later when Lucy married Mr Lati the couple raised Jumbo as their elder child. Before Ake Nepawan died she had no son so she gave her land and property to Jumbo, her only grandson then. The land Jumbo inherited is located directly across the street from his step father Ambrose Lati’s land. Ambrose also lived on Beat Street. Their houses are located about less than 200 meters away from the Wabag Town Police Station and the Enga Provincial Police Headquarters.

3. At about 4:00am on 25 March 2004 there was an attempted theft of the Kepan Family’s motor vehicle on Beat Street about 200 meters away from Jumbo’s house toward the opposite direction from the police station. When the family raised alarm the would-be thieves ran up Beat Street toward Jumbo and Mr. Lati’s house and toward the police station and Wabag Town. The neighbours who were awoken by the Kepan Family’s call joined the chase but the thieves got away. Jumbo woke when he heard his neighborhood awake and run along the street shouting and chasing the thieves. He walked to the back of his house downhill toward Kop Creek to look out for the thieves in case they passed through his backyard or in case they hid there.

4. Mr. Lati had been waiting about 15 meters downhill behind Jumbo’s house. As Jumbo approached Mr. Lati shot dead Jumbo, his step son, at point blank. Mr. Lati fired the first shot at close range but missed his target. He fired the second shot from the same position but again he missed his target. He hit his target with the third shot. Jumbo fell dead on the spot. The medical report indicated that the bullets entered the left side of Jumbo’s skull and exited out the right side cleaning out the brain tissues.

5. Mr. Lati submitted that he and his wife adopted the deceased Jumbo Ambrose when he was 3 months old. Everyone in Enga Province knows that Jumbo was his child. He argued that State witnesses gave false evidence to accuse him of murdering his own adopted son. The evidence against him was not true.

6. Mr. Lati told the Court that the "ninth Commandment in the Holy Bible says that thou shall not kill. The sixth commandment says thou shall not desire other people’s properties". He told the Court that the decision that this Court is about to hand down "is not true". He argued that the Court found him guilty and that he has a lot to say on this, but he will not comment much. Mr. Lati said "I give the decision in your hands. I will not be sorry to the Court. The Court has found me guilty and I do not have much to say. Thank you. That’s all."

7. Counsel for the Prisoner made the following submissions. The Prisoner is from Keas Village near Wabag Township. He is married and has six children. One is the deceased Jumbo and five are alive. The Prisoner has seven brothers and 2 sisters. He is the first born. He is educated to Grade Ten. He has had no formal employment since leaving school. He was on bail for K2,000.00 but that was forfeited by this Court when it learnt that he had breached bail condition. He had been previously held in custody for six months. The Antecedent Report shows no prior conviction.

8. Counsel submitted that the maximum penalty prescribed for the offence of willful murder is, subject to Section 19 of the Criminal Code, death. He referred the Court to case law that established sentencing principles including Ure Hane v State. The Parliament amended the Criminal Code in 1991 and introduced the death penalty. Counsel submitted that there are eight categories that are applicable in considering and imposing penalty for the crime of willful murder. He submitted that this case does not warrant the maximum penalty and that the Prisoner be sentenced for a lesser term.

9. Counsel argued that the circumstances in all the relevant cases referred in his submissions are not similar to this case. In this instance not all three shots fired landed on the victim. A prison term of sentence to life imprisonment corresponds to or reflects the nature of crime. The history of violence referred to in the State’s submission was not long running as submitted. There were only a few occasional instances of arguments. It was submitted for the Prisoner that a sentence that is second highest to the maximum should be imposed.

10. Counsel for the State submitted that the issue for this Court to determine is whether this is the worst willful murder case. The State relied on the Court’s written verdict to argue that the Prisoner had a history of violence with his step son whom he murdered. It is a worst case of murder. This is an instance of planned murder. The Prisoner blames others for the offence and he showed no remorse. He refused to accept the Court’s verdict. His plea of not guilty and the resources wasted to conduct trial and later have him found guilty should be considered in sentencing.

11. The State further argued that this nature of crime is prevalent and a deterrent penalty must be imposed. The penalty must reflect the crime. Counsel for the State agreed that the case authorities cited by Counsel for the Prisoner are applicable for consideration in this instance. Mr. Rangan added State v Clarence Mongi to the list of case authorities. That case involved the prisoner pleading guilty to killing a seven year old female and later raping the corpse.

12 The right to life is a fundamental right. The Constitution protects and preserves life and states that every person has a right to life. Section 35 of the Constitution states:

(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; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

13. Section 35(1) of the Constitution states that no person has the right to end another person’s life unless it is under the circumstances or exceptions set out under sub paragraphs (a) – (c). The Constitution prohibits unlawful killing of a human being.

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

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

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced—

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid—to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may—

(i) instead of, or in addition to, any punishment to which he is liable—be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that—

(i) he shall appear and receive judgement at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death".

16. Section 299(1) of the Criminal Code states that a person who unlawfully kills another person, intending to cause his death is guilty of wilful murder. This provision is made subject to other succeeding provisions. Section 299(1) prescribes the offence of wilful murder. Subsection (2) creates the penalty. It states that death penalty may be (i.e. by use of the word ‘liable’) imposed on a person found guilty of wilful murder. The Court has discretion to exercise under Subsection (2). That is, where a prisoner has been found guilty of wilful murder the maximum penalty is not automatic: Ume v The State. The Court may exercise its discretion under Section 19 of the Criminal Code however this discretion is not available where the law expressly provides otherwise. Where a prisoner is found guilty of wilful murder which may attract the death penalty the Court has a wide discretion to impose lesser penalty of life imprisonment or any shorter term taking into account the relevant factors and circumstances recognised in law. These include, among others, aggravating and mitigating factors and extenuating circumstances.

17. As at the date of our political independence, 16 September 1975, the Criminal Code prescribed death as the maximum penalty for wilful murder. The Parliament amended the Criminal Code in 1976 by Criminal Code (Amendment) Act (No 2 of 1976) repealing the death penalty. In 1991 the Parliament reintroduced the death penalty by Criminal Code (Amendment) Act 1991 (No 25 of 1991). (The Supreme Court in Ume had the opportunity to review the history of the death penalty provision, Section 299 Criminal Code. The Court went to some length to review relevant case authorities in our jurisdiction and in others similar to ours.)

18. Both the National Court and the Supreme Court have considered and applied Section 299 of the Criminal Code on many previous occasions and have established and applied sentencing tariffs. After 1991 the National Court has on a number of occasions imposed the highest penalty of death under Section 299 of the Criminal Code. In Charles Bougapa Ombusu v The State the Supreme Court quashed the decision of the National Court (The State –v- Ombusu) because the lower court made procedural errors resulting in miscarriage of justice. In The State v Stephen Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa the National Court imposed death penalty but the Supreme Court on appeal substituted the penalty with a sentence of life imprisonment on the basis that the National Court failed to take into account factors and personal circumstances favourable to the prisoner. In The State v Arua Maraka Harigi the prisoner has appealed the decision of the National Court imposing death penalty and the appeal is pending. In State v Langa Jalina J sentenced the prisoner to death for wilful murder. And finally in State v Ben Simakot Simbu the National Court imposed death penalty and the judgment is presently subject of appeal to the Supreme Court.

19 In Tony Imunu Api v The State the Supreme Court (Los, Sevua and Kandakasi JJ) considered an appeal of a sentence of imprisonment for life. It dismissed the appeal and held that the court below should have imposed the maximum penalty for wilful murder, death penalty. The Supreme Court’s statement in that case is orbiter dictum, however it is relevant for me to quote and draw comparison of the circumstances in that case to this case. This is because the Court expressed a firm view that the National Court should not hesitate to where appropriate impose the death penalty. The Court said:

"We are of the opinion that this was a worst type of wilful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view.

We therefore hold the view that the prisoner should have been sentenced to death. ... we consider that the National Court should in appropriate circumstances, consider that Parliament had amended s.299 of the Criminal Code for a purpose. In the light of the prevalent commission of wilful murder in the country, some of which can be categorized as very serious cases of unlawful killings, the National Court must not ignore the concerns of the community at large. We think the time has come for the National Court to seriously consider paying some attention to serious wilful murder cases, and where appropriate, impose the death penalty. We say this without in anyway trying to usurp the power and independence of trial Judges in the National Court".

20. The Supreme Court has tried to prescribe some general guidelines to apply in considering sentences in homicide cases. I consider three cases in particular: Ure Hane v The State, Manu Kovi v The State and Ume v The State. In Ure Hane the Supreme Court heard an appeal against a decision of the National Court (Kaputin AJ) where the prisoner was sentenced to life imprisonment. That was the maximum penalty at that time, not death. The Court allowed the appeal and imposed lesser penalty. The Court (Bredmeyer J) attempted to categorise worse cases of wilful murder. It said:

(1) A 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 policeman 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. This is a special Papua New Guinean category and local examples abound. The first reported case is R. v. Iu Kepati and Anor [1971-72] P. & N.G.L.R. 44. The second reported case is Goli Golu v. The State [1979] P.N.G.L.R. 653. The third example is that of Avia Aihi v. The State (No. 3) [1982] P.N.G.L.R. 92

(5) A payback killing of a completely innocent man. This is not a payback killing of the wrongdoer or the alleged wrongdoer who may be in custody or in hiding, but a retributive killing of some innocent member of the wrongdoer’s clan or family... R. v. Lakalyo Neak and Ors (Unreported judgment No. 632 of 1971); R. v. Peter Nima Kumangal & John Kaupa Kumangal (Unreported National Court judgment dated 16 October 1979).

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

Categories 6 and 7 differ from the others in that it is not the kind of murder which attracts the highest penalty but rather the dangerousness of the offender: R. v. Peter Ivoro [1971-72] P. & N.G.L.R. 374; see also Goli Golu per Raine Dep. C.J. and Wilson J.

(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.Ps".

21. Justice Bredmeyer stated that the categories above are not "closed and are flexible. Different judges may disagree with some of them and wish to add other categories".

22. In Manu Kovi the Supreme Court considered an appeal against a sentence of life imprisonment. The Appellant attacked his wife in a passenger motor vehicle, a bus in Port Moresby, National Capital District. The Appellant cut her repeatedly in full view of other passengers in the bus. She was rushed to the hospital but died from loss of blood. The attack was over their eight year old daughter. The Appellant argued that the sentence was excessive in the circumstance in that the trial Judge did not take into account relevant considerations in his favour. The Respondent highlighted a number of aggravating factors that weighed against the Appellant and argued that the offence was serious and the sentence was appropriate. The Supreme Court reviewed the relevant principles on sentencing and suggested a summary of sentencing tariffs. The Court concluded that the National Court did not fall into any error in the exercise of its discretion to impose a life sentence. The Supreme Court found that it was a:

"vicious killing of a defenceless woman in broad daylight, in full public view, in a moving motor vehicle. The prisoner had a history of violence towards the victim. He committed the crime two years after serving his term for that offence. The killing of a person in a moving public motor vehicle in full view of other passengers in a busy street is a serious killing. It demonstrates the offender’s complete disregard for human life, the rule of law and respect for the safety of members of the travelling public. Such an offence represents more than an ordinary danger to the community. This kind of killing must be visited with a strong punitive and deterrent sentence. We consider the sentence of life imprisonment to be warranted in the circumstances of this kind of killing. The present killing falls within the range of the third category of wilful murder case set out earlier... For this reasons, we dismiss the appeal and confirm the conviction and sentence of the National Court".

23. I have reproduced as a schedule to this judgment the Supreme Court’s summary of suggested sentencing tariffs. Category No 3 prescribes the circumstances that may warrant imprisonment for life for a wilful murder case. Manu Kovi decided in 2005 did not prescribe as a guide the circumstances of wilful killing which may attract the death penalty. It simply stated that "the maximum penalty of death is reserved for the worst case of wilful murder". A year later in 2006 the Supreme Court in Ume took a step further and laid down broad guidelines for the type of willful murder cases that may attract the death penalty. In the latter case the Supreme Court, on appeal by the prisoners, quashed the decision of the National Court imposing death sentence on each appellant. Their sentences were reduced to life imprisonment. The Court found that the trial Judge erred in law in exercising his sentencing discretion when he concluded that he was required by law to impose death penalty for pay-back killing. In addition the lower Court erred in not taking into account the mitigating factors, extenuating circumstances and other circumstances personal to the accused. The brief facts are that the nine (9) Appellants were among a group of people who set out to search for Francis Reu who was alleged to have murdered their relative a Mr Patrick Reu. They could not find Francis so they approached his mother, abducted her and brutally assaulted her and raped her. They then chopped her so viciously that she died. The trial Judge found this as the worst type of wilful murder and sentenced each Appellant to death.

25. The Court addressed the issue of whether the death penalty for wilful murder is mandatory in our jurisdiction. It considered Sections 19 and 299 of the Criminal Code and the history of the latter provision and the relevant case authorities relating to death penalty. It concluded that imposition of death penalty has always been, since 1965, a discretionary matter for the Court. Furthermore, the Supreme Court addressed the general principles of sentencing in wilful murder cases. The Court said at page 10:

"The punishment for willful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime".

26. The Court (at page 10) expounded on what constitutes aggravating factors, extenuating circumstances and mitigating factors. It said this in relation to aggravating factors:

"they include pre-planning, degree of pre-mediation (sic), weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after killing, and so on".

"relate to circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did".

"the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and good Christian background; first offender, guilty plea, early confession to police, remorse, co-operation with police, poor health and restitution or compensation".

29. The Court further stated that "... death penalty being the maximum punishment for willful murder is reserved for the worst type of case of its kind. The facts of each case will be of course different and the punishment for each case is to be determined on its own facts". It further said that because death penalty is the ultimate punishment it should not limit its considerations to the relevant factors to the factual circumstances of each case and the offender’s personal circumstances. It should consider external factors such as community concerns, prevalence of violent crimes, public and private morality concerns, the need for stern deterrence and punitive sentence and the special position of the victim (Section 21A Criminal Code).

30. In its attempt to prescribe the types of willful murder cases which may attract death penalty, the Supreme Court found that the Parliament had left it to the Court’s discretion. The Court stated that it is difficult for it to prescribe the types of killing which warrant the death penalty with some degree of precision. At pages 16 – 17) it said:

"It is difficult to lay down any universal principle of general application as to the kind of intentional killing which may warrant the death penalty. Each case will depend on its own facts. In general, considering that the death penalty is "qualitatively different" from any other penalties for wilful murder and that in our Criminal Code the death penalty is limited to only three crimes considered to be the most serious crimes, we consider the death penalty may be considered appropriate in a wilful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, "consciousless", "senseless", "pitiless" and "unnecessarily torturous": see Profitt v Florida 428 US 249 at 255. The crime is committed "by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning". Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances.

In our view, given the English experience and in particular the United States experience, the Parliament may wish to consider prescribing the types of aggravating circumstances in wilful murder cases which warrant the death penalty. It may also consider prescribing mitigating circumstances or perhaps re-introducing the "extenuating circumstances" provision. In the absence of such legislation, we would suggest the death penalty may be considered appropriate in the following types of cases:-

1. The killing of a child, a young or old person, or a person under some disability needing protection.

2. The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

4. Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

7. Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

31. In State v Aiko I imposed a penalty of life sentence to a young man who brutally murdered a Seventh Day Adventist Pastor in a broad day light at a crowded suburban market place at Hohola in the nation’s capital. Although the prisoner killed a person who had responsibility in the community providing valuable service for what I would assume a meagre fee, he was not killed in the course of his duty or by reason of his duty. The circumstances of the case did not fall into category No 2 suggested by the Supreme Court in Ume.

32. The maximum penalty is set for the worst case. The Supreme Court in Ume took a cautious approach prior to suggesting the types of circumstances that might attract death penalty. It took that approach because given the value and regard for the sanctity of human life and the seriousness and the finality of the penalty, it is not possible to prescribe with some precision what possible types of willful murder may attract the Court’s judgment to impose a penalty authorizing the termination of a human life.

33 The People of this nation have spoken through the Constitution and the Parliament that any person convicted of willful murder is liable to face death penalty. I agree with and follow my brother Justice Lenalia in State v Hungi Koeskapi that any consideration for penalty for willful murder starts with the death penalty. In my humble view, unlike a sentence in a manslaughter or a murder case where the Court may impose lesser or higher penalty depending on the relevant factors and circumstances of the particular case, a trial Judge in a willful murder case starts at the maximum penalty level and determines whether that highest penalty or a lesser penalty is warranted pursuant to Section 19 of the Criminal Code. This is the way I understand what the Supreme Court said in Ure Hane v The State. Although it is a pre 1991 judgment and it laid down the principle of law in relation to the maximum penalty at that time, i.e. imprisonment for life, the offence was the same – wilful murder. The principle of law is still relevant to considering death penalty post 1991. The Court stated:

"When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, insofar as the law allows, categorise 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 offender".

34. I am considering sentence in a willful murder case following conviction after trial. Is the case before me one that I should categories as the worst type? As simple and straightforward this question may sound the answer though, is not as simple and straightforward. I agree with the statements made by this Court in three separate instances in relation to this issue. In State v Yapes Paege & Relya Tanda (Woods J):

"And of course most crimes do permit of a 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 public money over a period of time. There can even be degrees of manslaughter or in layman's terms "accidental killings" depending on the amount of culpability or 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 two other levels of unlawful killings as in 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".

"But 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".

36. In 2004 the National Court in State v Ben Simakot Simbu (No 2) reiterated the same comments I have referred to above and elsewhere in State v Seteb. This difficulty is also acknowledged by the Supreme Court in Ume. It appears to me that as to what particular circumstances may constitute worse cases of willful murder warranting death penalty is an issue that may be answered over time as we gradually develop our jurisprudence unless the legislature prescribes those circumstances. We have already made some headway in addressing the issue in Ure Hane, Manu Kovi and Ume.

37. I have set out earlier Supreme Court judgments that have attempted to address this issue given that the Parliament has not assisted the Court with categorization of the worst type of willful murder cases that may warrant the maximum penalty. I apply the broad guidelines set by the Supreme Court in these cases to determine if this particular case falls into the worst type of willful murder warranting the death penalty. I consider the peculiar circumstances of this case, the relevant aggravating factors that weigh against the Prisoner and the extenuating circumstances and the mitigating factors that weigh in his favour and balance the scale to determine the appropriate sentence.

38. Are there mitigating factors and extenuating circumstances in this case? Mr Lati is a first time offender. He has five other children. Neither his Counsel nor Mr Lati told the Court whether any of the children are at school and who support them. The Prisoner has seven brothers and two sisters, he is the first born. Mr Lati related to two instances when he got angry with Jumbo. The first of these was when Jumbo got drunk and got money, drinks and biscuits out of his store. They argued but did not fight. The next instance was when Jumbo got his pig and gave it to a bank teller at Wabag. He argued with Jumbo but they did not fight. This evidence was uncorroborated so I did not accept them. If they were true then his own evidence demonstrates clearly that those circumstances would not have provoked him to kill Jumbo. There is no provocation or de facto provocation, a relevant extenuating circumstance which would have weighed in his favour. The Prisoner further informed the Court that he and his wife are separated as a result of this offence. His estranged spouse Lucy first adopted the victim from her sister Lina at age 3 months. Then she married Mr Lati. How does Mr Lati expect Lucy to feel when he killed her adopted son? Does Mr Lati expect his wife to feel safe being married to him? This particular unfortunate event was invited by his conduct. I am not convinced that this fact weighs in his favour. Mr Lati is not a simple illiterate villager. He is educated up to grade ten. He was well aware of the consequences of his action. I have considered that during allocatus Mr Lati remained adamant that he is innocent. He argued that State witnesses gave false evidence to have him convicted. He told the Court that the decision that this Court is about to hand down "is not true". Mr Lati said "... I will not be sorry to the Court..."

39. What then are the aggravating factors? Mr Lati and his victim, his step son, lived directly across the street from each other. Mr Lati had desired to take possession of the victim’s land which had a permanent town house, a bush house and a tucker shop at the front facing the street. His step son had inherited this land from his grandmother, Ake Nepawan. The Prisoner had on his land two permanent houses and a tucker shop facing the street. The Prisoner had on a number of occasions fought with his step son over the step son’s land. On more than one occasion the Prisoner had argued with, fought and chased his step son along Beat Street in full public view making statements that he will kill him and throw him into Kop Creek, a creek that runs behind his step son’s backyard and where the accused hid and awaited and shot dead his victim. Mr Lati had a history of violence toward the victim and with respect I differ from his Counsel’s submissions made on his behalf. It is not uncommon for a father and son to argue and or fight for all sorts of reasons. But Mr Lati’s statement made in full public view on more than one occasion when he argued and fought with his step son that he will kill him and throw him down at Kop Creek reflected much more than just ordinary arguments or fights between a father and son. These statements reflected what was embedded or entrenched in his mind. We are all too familiar with the expression: "Speech is the dress of thought".

40. Despite his step son’s resistance and without his consent the Prisoner had prepared to build his house behind his step son’s backyard. He had prepared the land and had posts ready to erect a house. This is despite the fact that the Prisoner had two permanent houses and a tucker shop and adequate space on his land on his side of the street. Prior to the murder the Prisoner had, on 14 October 2003, gone to the Village Court and had obtained an order from the Village Court that Jumbo was not his son and that Jumbo should reimburse the costs he had incurred to raise him. Jumbo was ordered by the village court and he did pay K1,200.00 to the Prisoner. There was no evidence that village court orders were set aside or varied or quashed by a higher court. The propriety or otherwise of the village court orders aside, the evidence illuminates the fact that the Prisoner disowned his step son whom he had adopted at three months old and raised as his own. Given that fact and further that the village court orders remained in force why would the Prisoner unlawfully trespass and build a house on his victim’s land? Mr Lati admitted building the house on his victim’s land.

41. It is not unreasonable and far fetched to draw a conclusion that in the mind of the Prisoner, he visualized (i.e. in his mind’s eye) owning three permanent town houses and letting it out to tenants. According to his own evidence at trial he said that he had let out the two permanent houses on his land. He and his wife lived in the small tucker shop at the front of the land facing the street. The State’s evidence was that Mr Lati was not a constant resident on Beat Street because he resided across town at his village at Keas. He intended to add Jumbo’s house to his enterprise. In addition there is Jumbo’s small tucker shop just slightly bigger than his own. There is more land at Jumbo’s backyard with further room for improvement. Why is it necessary for me to restate these findings I made in my verdict? They highlight the Prisoner’s motivation to wilfully murder his own step son and they further highlight the Prisoner’s greed and a strong selfish desire to kill.

42. Furthermore these facts aggravate the crime. The killing was premeditated. It was brutal killing in cold blood of an innocent person. The prisoner had blatant disregard for the sanctity of human life. It is not just any human life – it is his adopted son’s life. It makes no difference whether the deceased was his step son or natural son. The fundamental fact is that there existed a very special father and son relationship where the Prisoner was the provider and the protector before their relationship soured. It was pitiless for Mr Lati to kill his own step son. He fired the first shot at close range but missed. He fired the next at close range but again missed the target. On the third attempt he killed his child at point blank. At no time after the first and second shot did the Prisoner stop and reconsider his intention and action. At no time prior to and after the first and second shots did the Prisoner had any sense of the fatherly love nor did he ever feel sorry for his child in his heart. I can imagine that as he stood up and raised his gun to fire those shots, he was a man whose moral sense of right and wrong and whose moral sense of the respect for the value of the sanctity of a human life, let alone his own child’s life were cold and frozen that moment - the moment of the truth of his plan and his strong and malicious intent and irreversible evil desire to do nothing but kill his own child at whatever cost. To say that Mr Lati was heartless is an understatement. It is simply unthinkable. There is no lawful motive for taking away a young man’s life.

43. This was a vicious and brutal killing. Although only a single shot killed the victim, the victim had much of his brain cleaned out by that single shot. The victim was innocent and harmless. The victim had no weapon in his hands other than a torch at the time he was murdered. He was a young man, with a young family. The Prisoner used a pump action shot gun; a highly dangerous weapon. It is senseless and pitiless and completely devoid of any moral conscience. The Prisoner’s greed, selfishness and hate bore their fruit – the shooting death of Jumbo, his own step son he raised as his own child. I am satisfied that the aggravating factors in a worst type of willful murder case listed in Ume are present in this case. This is no doubt the worst type of willful murder.

44. Do the circumstances of this killing fit into category No 3 in Manu Kovi so as to warrant imprisonment for life? This case has the general aggravating factors prescribed under category 3. However there are special aggravating factors present which make any mitigating factor and extenuating circumstance far too insignificant. In addition, the peculiar circumstance of this case does not fall into the eight broad categories suggested by the Supreme Court in Ure Hane. The special aggravating factors set down in Ume are present in this case. This case either falls in the broad category No 1 suggested in that case or it doesn’t. Category one involves "the killing of a child, a young or old person, or a person under some disability needing protection". If this category is for a young child or person that requires protection then the case before me does not fall into that category. In this case although the victim was a young person he did not require the protection of the father or any other person.

45. The circumstances of the willful murder before me may be a new category. A parent kills his step son or child in a premeditated senseless, pitiless, vicious and brutal cold blooded manner in order to inherit the child’s possession or wealth. There have been and there will come before this Court instances where the trial Judge considering all that must be considered and having done so, reaches a conclusion that the circumstances of the case before him or her warrants death penalty. There may come a time when a trial Judge is presented with an opportunity where the peculiar circumstances of a serious willful murder case does not fall within the established categories which warrant the death penalty. Should that trial Judge impose a lesser penalty because the circumstances of the case do not fall into any one of those established categories, but nevertheless the willful murder is of the worst type? I believe a trial Judge should not shy away from imposing the maximum penalty where the particular circumstances of the case before him or her warrant such penalty. Human experience has shown that almost all cases present themselves with varying circumstances. Not all serious willful murder cases may fall into the categories in Ure Hane or Ume or any other established categories. In my humble view the categories, although broad, are not exhaustive.

46. I am mindful of the ever increasing community concerns about the prevalence of this particular nature of crime and their call to curb it. The prevalence of this crime makes society think that life has become so cheap. Particularly in Enga Province there are more homicide offences as indicated by the records in the National Court Registry. I am not swayed in any way by the recent media reports of a parent’s multiple murder of her own children and the emotive public outburst. The Court’s response to such community concerns must remain objective. More importantly justice in each case is determined on its own merits, not otherwise. This is a case where the Prisoner’s pitiless and selfish economic interests have pushed him to the extent where he had no respect for the dignity and the sanctity of his own step son’s life. He had no sympathy for his own wife, the adopted mother of his victim, his victim’s natural mother and the immediate family. Despite a court of competent jurisdiction finding him guilty after a full trial where he had the opportunity to test the State’s evidence and rebut that evidence with his own through a very experienced Defence Counsel Mr Lati still maintains his innocence. He remains unsympathetic for his crime. Unfortunately for him the very scriptures from the Holy Bible he quoted to this Court in allocatus are the very one’s that he has failed to keep.

47. Crimes relating to economic interests, and particularly crimes that we once only read or heard about occurring in other parts of the world such as daring daylight bank robberies or high jacking of aircrafts or kidnapping people for ransom have landed on our shores. These are very high risk crimes whose authors have no value for and no regard for the respect for the dignity and sanctity of human life. I agree with the Supreme Court in Api that it is about time the Courts seriously impose death penalty within the law to send appropriate stern and deterrent message.

48. In reaching the conclusion I have reached, I have taken into account what the Constitution says about the human life. At the very beginning, in the Preamble, in establishing our sovereign nation ... to be the Independent State of Papua New Guinea, we have by virtue of that authority made a number of poignant assertions, one of which is: "that respect for the dignity of the individual and community interdependence are basic principles of society ..." As for the basic rights we have pronounced: "We hereby acknowledge that, subject to any restrictions imposed by law, ... all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, place(s) of origin, political opinion, creed, or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interests, to each of the following: – life, liberty, security of the person and the protection of the law; ..."

"We hereby declare that all persons in our country have the following basic obligations to themselves and their descendants, to each other, and to the Nation: – (a) to respect, and to act in the spirit of this Constitution; and ..."

50. In making the statement and in acknowledging and making the declaration at the beginning of our Constitution we have expressed unambiguously how we value the human life. We have stated that we will respect the dignity of the individual and we have pronounced that we will, subject to any restrictions imposed by law, acknowledge and respect the fundamental rights of others – the paramount of which is the right to life. Furthermore we have declared that our obligation to ourselves and to others and to the nation is to act in the spirit of the Constitution. What the spirit of the Constitution says about human life and how the spirit of the Constitution values human life is very plain. We have not just made bare and meaningless statement, acknowledgment or declaration. We have under Section 35 of the Constitution given meaning and legal force to our poignant statement, acknowledgement and declaration in relation to how we regard and value the human life. Section 35 states that no person shall be deprived of his life unless, among other reasons under that provision, in execution of a sentence of a court following his conviction of an offence.

51. There is a conscious decision made to unlawfully take away the life of another fellow human being quite conscious of the consequences of his actions. The victim’s life cannot be revived. The crime, whatever the peculiar circumstances is not just a breach of Section 299 of the Criminal Code. It is a serious and flagrant breach of Section 35 of the Constitution – a much higher law of the land. The right to life provided for and protected by Section 35 of the Constitution is the very first fundamental right guaranteed by the Constitution. The highest law, the Constitution, authorizes death penalty subject to the Courts’ broad discretion. Once the offence of willful murder has been committed and to extent that the Constitution prohibits it and to the extent that the fact remains that a life has been irreversibly terminated in breach of that higher prohibition it is worse enough. What right has the Prisoner to kill his victim without lawful authority? Where does justice lie? If the victim – say he was a person less than a saint – were to speak from his grave as to what ought to be the penalty proportionate to the crime the result of which he is placed where he is; and for which a court of competent jurisdiction has found the author of his fate guilty either on his own plea or after trial, what would the victim ask for?

52. The Supreme Court in Api expressed strong view that death penalty should be considered seriously. This is because of the fact that despite the amendment to Section 299 of the Criminal Code increasing the maximum penalty for willful murder from imprisonment for life to death there is no decrease in the offence. The amendment has not brought about any deterrence. The fact that the Court has on a number of occasions imposed the maximum penalty for willful murder has had no deterrent effect. It may be because no death penalty has been carried out which might deter this nature of offence. Or is it because the National Court has not imposed that many death penalties because it has been reluctant to impose the maximum penalty in willful murder cases because there is no guidance from the legislature as to what categories of willful murder cases may attract death penalty. It is not for me to get into an academic exercise to determine the reason for the lack of resultant deterrence of willful murder in the country despite the reintroduction of death penalty and the Court imposing a number of death penalties. My duty is to apply the law as it is through judicious process.

53. I am satisfied that the degree of moral and criminal culpability and the degree of cruelty and senselessness and the complete absence of pity exhibited by the Prisoner is so grave and reprehensible that he is undeserving of a chance to live his own life. It is only just and fair that the prisoner should pay for the crime with his own life. "His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances", Manu Kovi. This I believe is the Court’s response to the crime in this instance. This should send stern warning to people in Enga Province and elsewhere that where circumstances of a wilful murder case warrants this Court to impose the maximum penalty of death it will not shy away from discharging its constitutional duty.

54. Finally I have reached the final conclusion not based on what the hypothetical dead victim’s answer might be from his last resting place where he is placed by the prisoner but I have been persuaded purely by the particular merits of this case to reach such conclusion.

55 For the reasons I have set out earlier in this judgment the penalty proportionate to and fitting to the type of willful murder and the gravity of the offence warrants the death penalty. I sentence the Prisoner Mr Ambrose Lati to death. In accordance with Section 597 of the Criminal Code, I order Mr Lati to be held in custody at Baisu Correctional Service and his sentence shall be carried out at a time and place to be appointed by the Head of State, acting on advice, and that he shall be hanged by the neck until he is dead.

56 A warrant shall be issued reflecting the Court’s sentence and order. I so order accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood -Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used. -Killing accompanied by other serious offence. Victim young or old. -Pre-planned and pre-meditated. -Strong desire to kill.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-LIFE IMPRISONMENT-
WORST CASE – Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.		-Pre-meditated attack. -Brutal killing, in cold blood. -Killing of innocent, harmless person. -Killing in the course of committing another serious offence. -Complete disregard for human life.	-Some element of viciousness and brutality. -Some pre-planning and pre-meditation. -Killing of innocent, harmless person. -Complete disregard for human life.

National Court of Papua New Guinea

State v Lati (No 2) [2009] PGNC 121; N3740 (17 July 2009)