State v Onda [2011] PGNC 276; N4988 (19 January 2011)

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CRIMINAL LAW – sentence – quadruple wilful murder – s.299 Criminal Code – prisoner is biological mother of victims, one male and three females – male child aged 3 years, female victims aged 5 years, 7 years and 8 years respectively – children thrown into fast flowing river in early hours of morning – male child thrown into river while asleep – victim aged 5 years thrown into river while asleep – victims aged 7 and 8 years forced to jump into the river with the prisoner holding their hands – all victims died of suffocation via drowning – prisoner survived - an attempted suicide by prisoner - killings associated with history of marital problems between prisoner and husband – killings callous, cruel and inhuman - killing in cold blood - killing of innocent, defenceless and harmless young children - pre-planned and pre-mediated - strong desire to kill - guilty pleas – no prior conviction – extenuating circumstances – de facto provocation - sentence of life imprisonment imposed for each count – all sentences to be served concurrently.

Regina v Peter Ivoro [1971-72] PNGLR 374
The State v Elias Subang (No.1) [1976] PNGLR 141
Public Prosecutor v Tom Ake [1978] PNGLR 469
Goli Golu v The State [1979] PNGLR 653
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
John Elipa Kalabus v the State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
The State v Arua Maraga Hariki (2003) N2332, PGNC140
The State v Kepak Langa (2003) N2462, PGNC48
The State v Alois Erebebe & Anor, CR 70 of 2003, Unreported & Unnumbered Judgment of Batari, J delivered in Goroka in September 2003
The State v Mark Poroli (2004) N2655, PGNC113
Manu Kovi v The State (2005) SC789
The State v Ben Simakot Simbu (No.2) (2004) N2546, PGNC225
Steven Loke Ume & Ors v The State (2006) SC836, PGSC9
The State v Upano Manake (No 2) (2006) N3504, PGNC174
The State v Sedoki Lota and Fred Abenko (2007) N3183, PGNC167
The State v Clarence Tema Mongi (2007) N3259, PGNC135
The State v Ambrose Lati (No 2) (2009) N3740, PGNC121
The State v Michael Ingwai, CR 116 of 2008, Unreported & Unnumbered Judgment of Makail, J delivered at Minj on 10 November 2009

Messrs Joe Kesan & Joe Waine, for the State
Messrs Peter Kumo & Philip Leka Kapi, for the Prisoner

1. DAVID, J: INTRODUCTION: On 5 May 2010, the prisoner appeared before me on remand from Baisu Correctional Institution and entered pleas of guilty to four counts of wilfully murdering four of her own children namely, Angeline Onda, Tresy Onda, Naomi Onda and Solomon Onda on 4 July 2009 at Warakum, Mt. Hagen, Western Highlands Province in Papua New Guinea contrary to s.299 (1) of the Criminal Code. Having been satisfied that the joinder of the four counts in the same indictment was permitted by s.531 (4) of the Code (The State v Elias Subang (No.1) [1976] PNGLR 141 and Charles Bougapa Ombusu v The State [1996] PNGLR 335) and the evidence contained in the depositions supported the charges, I confirmed the guilty pleas and entered convictions against the prisoner in respect of all the counts.

2. To assist me in deciding the appropriate sentences for the prisoner and at the request of the prisoner's counsel, I directed that a pre-sentence report be compiled and filed by the Probation Service here by 20 May 2010 when parties were to make their submissions on sentence. The report was not ready by the due date therefore the earlier directions were extended to 27 July 2010. The report was filed within the extended period. Submissions on sentence were not heard on 27 July 2010 as scheduled and the matter was deferred indefinitely. I managed to hear submissions on sentence on 19 October 2010 then adjourned for sentence on 17 November 2010 at 01:30 pm. I was not able to deliver sentence as scheduled due to changes made to the November court circuit programme resulting in my circuiting elsewhere out of the province.

3. The admitted short facts are these. The prisoner is married to one, Onda Anis. They live at Kuia village, Mt Hagen. They were married in 1999. From the marriage, they had four children. They are the victims namely, Angeline Onda, Tresy Onda, Naomi Onda and Solomon Onda. At the time the crimes were committed; Angeline was aged eight years, Tresy was aged seven years; Naomi was aged five years; and Solomon was aged two and one half years. The marriage was not a happy one which was fraught with constant problems. Five months prior to the fateful day of 4 July 2009, the prisoner decided to commit suicide. She also decided to take the lives of her children because she could not cope with the problems her husband had caused over the years. On 3 July 2009, late in the evening at about 11:00 o'clock, the prisoner had her children dressed up including herself and told them that they were going to see a relative at Warakum. She brought her children to Warakum and waited at the side of the river. At about 4:00 o'clock in the early hours of the morning of 4 July 2009, she put into action her plan. At that time, Solomon was already fast asleep. She picked him up and threw him into the river and drowned. She then picked up Naomi who was also sleeping at the time and threw her into the river and she also drowned. She then grabbed Angeline and Tresy by their arms and forced them to jump into the river with her. The two children drowned, but the prisoner was swept to the side of the river by the current and survived. She reported the crimes to the police and surrendered to them. Villagers from the Warakum area including relatives were alerted by police and a search was mounted. The bodies of the deceased children were found in the river. By doing so, the prisoner intended to kill or cause the deaths of the children.

4. The prisoner is originally from Ulka in the Nebilyer District outside Mt. Hagen in the Western Highlands Province, subsistence farmer. She has seven other siblings. Her parents are deceased. She was very young when her mother died and her father died a couple of months prior to her committing the crimes. Her mother was allegedly murdered by her father. During the time when her father was detained for that crime at Baisu Correctional Institution, she was brought up under the care and discipline of her older siblings. She married Onda Anis of Kuia also in Mt. Hagen in 1999. She has been residing in Kuia since her marriage. The victims were the only children from the marriage. She is a member of the Roman Catholic Church. She is illiterate. She was aged twenty eight years when she committed the crimes. She is currently in good health. She does not have any prior conviction.

5. The prisoner voluntarily surrendered to the police here in Mt. Hagen on the morning of 4 July 2009 after spending some time with some Southern Highlanders following the commission of the crimes. She has been in custody since. She is currently remanded at Baisu Correctional Institution. She would therefore have been in custody for a total of one year, six months, two weeks and one day at the date of sentence.

6. When the prisoner was given the opportunity to address the Court in accordance with s.593 of the Code, she said sorry because what she did was wrong. She also said sorry specifically to the deceased children, the government and the Court. She also said that her husband had caused her to do what she did and she was not entirely to be blamed. She went on to say that she will accept whatever penalty the Court intended imposing for the crimes she committed.

7. The pre-sentence report prepared by the Probation Service, Probation Officer, Lilly Songoa is a comprehensive and detailed one and I thank her for her effort. The report contains information from the police and views of a number of persons interviewed by the author of the report including the prisoner. Apart from the prisoner, others interviewed include; Leo Meninga, a community leader and a relative; Lina Anis, the prisoner's mother in-law and the children's grandmother; Anis Wurr, the prisoner's father in-law and the children's grandfather; Pastor Isaac Bakri of the Togoba Local Church, community leader; Pastor Petrus Komel of the Tiki Assemblies of God Church, community leader; Councillor William Noki, the prisoner's cousin; Thomas Koim, the prisoner's elder brother; and John Anis, a catechist from the St. Paul's Parish, Kuia. I have perused the report and take note of the views expressed by the interviewees, the description there of the circumstances under which the prisoner committed the crimes, the assessment made about the prisoner and the recommendations of the author of the report. I summarise the views of the interviewees below.

8. Leo Meninga stated that the prisoner having gotten rid of her children in the manner she did was now living happily in the security of the Correctional Institution. He said what the prisoner did was unacceptable by society therefore the Court should consider imposing the prescribed maximum penalty for the crimes.

9. Lina Anis and Anis Wurr stated that they are greatly saddened by the death of their grandchildren. They miss them and still mourn their loss. Anis Wurr also stated that although he forgave the prisoner, subject to the Court's decision, she was never to return to their village whenever she was released.

10. Thomas Koim stated that he looked after the prisoner when she was a child during the period when their father was detained for murdering their mother. The prisoner first married a man from Nebilyer, but left him and married her current husband. He had to repay the bride price paid by the prisoner's former husband as a result. Embarrassed and frustrated about that, he did not see her for some time after that. The prisoner once brought all the deceased children to his house telling him that she was having problems with her husband, but he told her to return with the children to her husband as he feared for the safety of the children if they stayed with him and she heeded his advice. If the prisoner had marital problems with her husband, they were matters that should have been addressed between themselves. They had nothing to do with the innocent children he said. What his sister did was not only very serious, but inhumane and unimaginable. The idea of paying some form of compensation was out of the question as his parents who might have taken ownership of the crimes committed by the prisoner were deceased and there was no one else to step into their shoes. He said if ever the prisoner is released from prison which he is not so concerned about, she will not be welcome or accepted by their family or community and therefore she will have to find a place elsewhere to live in.

11. Isaac Bakri, Petrus Komel and William Noki all stated that the community and family disowned the prisoner for the serious crimes she committed. They said if ever she is released from prison, she will not be accepted by her own community as well as her husband's. They said they will not sympathize with the prisoner in any way therefore the Court should consider imposing the prescribed maximum penalty for the crimes.

12. John Anis stated that from the Christian standpoint, the prisoner has been forgiven, but deep inside remained the hurt that four innocent children met their deaths at the hands of the person they trusted. He said the Court should impose a sentence that befitted the crimes.

13. As to the prisoner's views, she stated the following. Her marriage was fraught with domestic upheavals at home since the birth of Angeline. At one stage during her marriage, she went into taking drugs to relieve herself from stress associated with her marital problems. What she did was a culmination of the on-going problems in the marriage. Her life was full of fun and happiness before she got married. Her husband was a drug addict and gambler. He would accuse her of having extra-marital affairs with his own tribesmen from their village and often forced her into having sex against her will resulting in having children without proper spacing. He would also mistreat her in public. She did not have much freedom so as to spend time with neighbours and others in the community and was therefore a loner with no friends in the community. Her husband did not support her financially or in working the land nor did he pay any bride price. She did not have any means to meet any order for payment of any kind. Her relationship with her other siblings was good until she committed the crimes. Apart from Thomas Koim, her elder brother, she has not been paid a visit by any relative whilst in custody. When Thomas Koim visited her at the Baisu Correctional Institution, he expressed to her how shocked he was about what she did and told her that she would have to face the full consequence of her animalistic action. She does not have a future any more and takes each day as they come. If ever she is released, she does not plan on returning to her husband and his community.

14. The assessment given about the prisoner by the author of the report is not favourable. It is recommended that it will not be in the best interest of the prisoner and the community for the prisoner to be released on probation other than spending a long period of time in custody without being released on parole because of the seriousness of the crimes she committed and that there is no possibility of a positive rehabilitation of the prisoner and reconciliation with her own relatives and her husband's.

15. Section 299 of the Code creates the offence and prescribes the penalty for wilful murder which is death. That provision is in the following terms:-

"(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. The death penalty is not mandatory, but is the maximum penalty that can be imposed. The Court has a considerable discretion as to whether or not to impose the maximum penalty when reading s.299 (2) in conjunction with s.19 (1)(aa) of the Code: Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; Steven Loke Ume & Ors v The State (2006) SC836, PGSC9.

"(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; ...."

18. As death is the ultimate penalty, it is reserved for the worst cases of the offence and to be decided on the facts of each particular case: Goli Golu v The State [1979] PNGLR 653; Avia Aihi; Ure Hane; Lawrence Simbe v The State [1994] PNGLR 38; Steven Loke Ume; Manu Kovi v The State (2005) SC789, PGSC34.

19. The courts over the years have been guided by sentencing guidelines for wilful murder cases enunciated by the Supreme Court.

20. In Ure Hane, when the prescribed maximum penalty for wilful murder was life imprisonment, at footnote number 1, the Supreme Court observed that '[w]hen considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so far 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.' In that case, Bredmeyer, J, without being exhaustive, set out at pages 107 to 109 what he considered to be the worst category of wilful murder cases in which he recommended that a trial judge should consider imposing life sentence and these are:

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.

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

8. A wilful murder of the Governor General, the Prime Minister, the Leader of the Opposition, the Speaker of the National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.Ps.

"I consider that if a wilful murder falls into any of the above categories, a judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but must seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the trial judge must then consider the seriousness of the particular murder in the case of seriousness of the murders in that category."

22. Manu Kovi and Steven Loke Ume are two recent Supreme Court cases that give sentencing guidelines for wilful murder.

23. Before Steven Loke Ume, the Supreme Court in Manu Kovi examined and reviewed previous case precedents on sentencing tariffs for homicide cases including wilful murder and for this offence laid down guidelines placed under four categories which are summarised in the table below.

CATEGORY 1	DETAILS	TARIFF
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.	15 – 20 years
CATEGORY 2
Trial or Plea - Mitigating factors with aggravating factors.	- Pre-planned. - Vicious attack. - Weapons used. - Strong desire to kill.	20 – 30 years
CATEGORY 3
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-mediated. - Strong desire to kill.	Life Imprisonment
CATEGORY 4
WORST CASE - Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	(None provided)	Death

24. The Supreme Court there stated that the maximum penalty of death should be reserved for the worst case of wilful murder without prescribing the types of cases which should come under category four in which the death penalty may be imposed. As can be seen from the table above, the Supreme Court only recommended that a worst type of wilful murder case whether conviction was secured after a trial or on a plea is one where; special aggravating factors exist; there are no extenuating circumstances; there are no mitigating factors or there are mitigating factors, but they are rendered completely insignificant by the gravity of the offence.

25. However, where it is considered that the case falls within the worst category for the offence, it was stated by the majority of Frost, ACJ and Kelly, J in the pre-independence Supreme Court case of Regina v Peter Ivoro [1971-72] PNGLR 374 at p.381 that a judge must consider if any extenuating circumstances exist, i.e, whether there are '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 the 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': see also Steven Loke Ume.

26. As to the meaning of the phrase "extenuating circumstances", the Supreme Court in Steven Loke Ume at paragraph 42, p.20 of the judgment stated as follows:

"As to extenuating circumstances, the concept is also not new. They relate to the 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."

27. When making the distinction between extenuating circumstances and mitigating factors, the Supreme Court at paragraph 44, p.21 of the judgment made the following observation:

"There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant: John Elipa Kalabus v The State [1988] PNGLR 193."

28. In Steven Loke Ume, before attempting to list the types of wilful murder cases which could warrant the imposition of the maximum penalty of death similar to that which was done by Bredmeyer, J in Ure Hane, the Supreme Court considered the positions and experiences of a large number of countries on the question of the death penalty for serious crimes and made the following observation at paragraph 66, p.34 of the judgment:

"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 "qualitively 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 defenseless 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."

29. The Supreme Court, at paragraph 67, pages 35 and 36 of the judgment, without being exhaustive, then proceeded to suggest that the death penalty may be considered 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. Killing by a prisoner in detention or custody serving sentence for another serious offence of violence.

30. In mitigation, Mr. Kapi made the following submissions on behalf of the prisoner. First, the prisoner voluntarily surrendered to the police. Second, the prisoner cooperated with the police by readily making admissions at the earliest opportunity demonstrating acceptance of criminal responsibility. Third, the prisoner entered guilty pleas to all four counts which in turn saved the Court and the prosecution time and money in dealing with the matter as a contested trial to determine her guilt. Fourth, the prisoner was not a habitual criminal or serial killer, but was a first offender with no prior convictions. Fifth, the prisoner did not use any weapon to commit the crimes. Sixth, this was an isolated incident. Seventh, the killings were not in cold blood. Eighth, the prisoner acted alone. Finally, the prisoner acted in a situation where there was de facto provocation caused by her ongoing marriage discords with her husband.

31. In aggravation, it was submitted as follows. First, the lives of four completely innocent, very young and defenseless children were terminated prematurely by the prisoner. Second, the crimes were committed at night. Finally, the crimes were pre-planned and pre-meditated.

32. Mr. Kapi further submitted that the killing of the four children in the manner they were done was unprecedented in the country. The news about their deaths made the headlines in the media and people were shocked he said. The funeral service was conducted in public at the Queens Park Oval here in Mt. Hagen to reflect widespread condemnation of the killings by relatives of the prisoner and her husband's and the general public. The prisoner pre-planned and pre-meditated the commission of the crimes including intending to die with the children. She successfully executed the plan, except that she unfortunately survived and now has to face the full force of the law to determine her punishment for the crimes.

33. Counsel invited me to consider The State v Arua Maraga Hariki (2003) N2332, PGNC140; The State v Ben Simakot Simbu (No 2) (2004) N2546, PGNC225; The State v Alois Erebebe & Anor, CR 70 of 2003, Unreported & Unnumbered Judgment of Batari, J delivered in Goroka in September 2003; and The State v Michael Ingwai, CR 116 of 2008, Unreported & Unnumbered Judgment of Makail, J delivered at Minj on 10 November 2009 in determining the appropriate punishment for the crimes the prisoner committed.

34. In Arua Maraga Hariki, Salika, J, as he then was, convicted the prisoner of two counts of wilful murder after a trial. The prisoner, the two deceased namely Heni Veidiho and Mathew Togiri and another man, John Naime were drinking alcohol at night at the prisoner's house at Baruni. Later, the prisoner strangled Heni by his neck and caused him to die. The other deceased, Mathew who was sleeping in the prisoner's vehicle when Heni was murdered was found together with the body of the Heni nearby along the Papa-Lealea road. Conviction for the death of Mathew was based on circumstantial evidence. The third person, John Naime fled from the scene in fear for his own life. For the first count, the prisoner was sentenced to life imprisonment. For the second count, the prisoner was sentenced to death.

35. In Ben Simakot Simbu (No.2), Kandakasi, J found the prisoner guilty on two charges of wilful murder after a trial. The victims were a married woman and a child aged two years. The Court, in considering that the offences committed fell in the worst category of the offence of wilful murder, sentenced the prisoner to death on both charges. There, the prisoner went to the victims' block and requested to get a live chicken on credit so that he could pay for it later when he found money. The adult victim refused and the prisoner repeated his request the second and third time. On the third time, when the adult victim again refused, the prisoner grabbed her and forced her down to the ground and forcefully had sexual intercourse with her. After having sex with her, the prisoner got an old, but still strong piece of iron and hit her across her head as she lay on the ground causing instant death. He used the same piece of iron to hit the child on its head who was by then crying and watching helplessly. The child died instantly as well.

36. In Alois Erebebe, Batari, J convicted the prisoner of nine counts of wilfully murdering nine people, five adults and four children. The majority of them were members of a single family. The deceased were travelling in a vehicle when the prisoner, armed with a gun, ambushed them and sprayed the vehicle with bullets resulting in their deaths. That was a payback killing. Life sentences were imposed for the killing of the children while ten year sentences were imposed in respect of the killing of each adult. A copy of the judgment was not produced by counsel nor was I able to locate the same in my researches of the pngInLaw and Paclii databases. Hence, I have no idea as to how His Honour's discretion was exercised against imposing the death penalty nor the veracity of the brief details counsel gave about the case.

37. In Michael Ingwai, Makail, J found the prisoner guilty of one count of wilfully murdering two young male children aged three and six years respectively after a trial. The deceased were brothers. They lived with their mother in their house. On the morning of that fateful day, present with them in their house were the prisoner, his wife and son. When the prisoner's wife and son left for the market, he took his bush knife and went out of the house. All of a sudden, he ran back to the house and started accusing the children's mother of being a sorcerer. The prisoner suspected that she was responsible for the death of his two children earlier on. He swung the bush knife at her, but somehow she grabbed his hands and the knife missed her. She managed to run out of the house, but the prisoner ran after her and cut her several times on her back with the knife not far from the house. He then ran back to the house and sealed the door with a big wood from outside with the two children inside and set it alight. He stood in front of the house with the bush knife covered with blood in his hands and prevented people from gaining access into it to save the children and also from putting out the fire. The children were burnt to death and their ashes were found after the fire had subsided. The prisoner was sentenced to life imprisonment.

38. Counsel submitted that this case does not fall under any of the categories suggested in Manu Kovi. He contended however that where the death penalty has been imposed, that depended on the particular facts and circumstances of that case. He stated that considering the peculiar circumstances of this case and the gravity of the crimes, he urged the Court to impose a sentence of life imprisonment for each count to be served concurrently applying the totality principle. He also submitted that the prisoner be eligible for possible early release under the provisions of the Parole Act contrary to the recommendation against it by the Probation Service in the pre sentence report.

39. Mr. Kesan for the prosecution submitted that four young and innocent children in the custody and care of the prisoner who had nothing to do with the problems faced by the prisoner in her marital, family and social life were intentionally killed by drowning in a single act or series of acts perpetrated by her. Those factors brought this case within the worst category of wilful murder cases he said. He agreed with the defence however that the manner in which the children were killed through drowning was unprecedented and rare as usually killings in wilful murder cases were through the use of offensive weapons such as bush knives and firearms. However, the end result is the same in all cases in that death is intentionally caused he stated. Counsel further submitted that death caused by drowning was more serious than one caused by gun shots in that in the latter situation, death is instant while in the former situation, death was slow and inhuman.

40. Mr. Kesan contended that whilst this case fell within the worst category of wilful murder cases therefore the maximum prescribed penalty ought to apply, he was not pressing for the death penalty because of the prisoner's pleas of guilty and the peculiar circumstances of this case. However, he said the death penalty has been imposed by the National Court even on a guilty plea and it was at the discretion of the Court to consider it. He referred to The State v Mark Poroli (2004) N2655, PGNC113 as an example. In that case, Lenalia, J sentenced the prisoner to death upon pleading guilty to wilfully murdering a policeman. The victim was a member of the Police Mobile Squad 10 based at Tari. There was a shootout between police and some people amongst the crowd who had gathered to witness a compensation payment at a village between Koroba and Tari in the Southern Highlands Province. During the shoot out, a relative of the prisoner was shot dead. There was no evidence that the police shot him. The victim was on duty together with a number of policemen who provided escort for an intending candidate in the 2002 General Elections. A confrontation ensued between villagers and the policemen because it was claimed that the police had provided an escort for a candidate who was not a Minister of the State. As the police vehicle was being driven away from the scene, the back tyres got punctured from gun fire from the villagers and the policemen had to flee on foot in fear for their lives. Some of them including the victim spent the night in the bush because it was dark. Early in the morning, the prisoner and his accomplices found the victim and took him to a cliff situated on one end of a nearby hill where the prisoner using his home made gun shot him in the forehead. He died instantly.

41. Counsel also submitted that all decisions of the National Court where the death penalty has been imposed so far have been appealed and they include Arua Maraga Hariki and Ben Simakot Simbu (No.2). In appeals it has already heard, the Supreme Court has so far not confirmed any of the death sentences he said. That meant that the decisions of the National Court are being relied on by trial judges as precedents when considering whether to impose the death penalty counsel further contended. Counsel also invited the Court to consider Alois Erebebe, a case which the defence has referred to and which he said was currently on appeal to the Supreme Court by the Public Prosecutor for inadequacy of sentences saying that that was a case that warranted the imposition of the death penalty.

42. Counsel further submitted that the killings by the prisoner received widespread community condemnation. Hence, in deciding the appropriate penalty for each charge, he called for strong punitive sentences other than the death penalty to reflect the community's abhorrence of the crimes in particular in the peculiar circumstances in which the crimes were committed. The pre-sentence report which contains the community's input vouches for that he said.

43. I agree with counsel that the killings in this case are unprecedented. The gravity of the crimes committed are quite apparent from the short facts put to the prisoner on arraignment such that, and subject to what I say later on in the judgment, I have had no hesitation in finding that this case falls within category four of the Manu Kovi guidelines, the worst category of wilful murder cases for which the prisoner is liable to be sentenced to death. This is a case which falls under categories one and six of the categories of wilful murder cases suggested in Steven Loke Ume where the death penalty may be considered. Those are the special aggravating factors that apply in the present case. Category one wilful murder cases include the killing of a child or a young person. In the present case, the deceased were young children aged; eight years in the case of Angeline; seven years in the case of Tresy; five years in the case of Naomi; and two and one half years in the case of Solomon. Their lives were terminated prematurely. Category six wilful murder cases relate to the killing of two or more persons in the single act or series of acts. In the present case, the prisoner caused the death of four innocent, young and defenseless children through suffocation via drowning in a series of acts happening at about the same time and at the same place along the bank of the Kum River. She threw Solomon into the river first when he was fast asleep. Naomi was the next to be thrown into the river by the prisoner when she was half asleep. The prisoner then forcefully held Tresy and Angeline by their hands and jumped with them into the river and they let go when they were drowning.

44. Post mortem medical examinations of the bodies of the deceased children were conducted by one Dr. Michael Dokup on 9 July 2009 at the mortuary of the Mt. Hagen General Hospital: see Post Mortem Report for each deceased all dated 9 July 2009; Medical Certificate of Death for each deceased all dated 3 October 2009 and four Affidavits of Dr. Dokup all sworn on 3 October 2009 deposing to him conducting the post mortem examinations and the compilation of the Post Mortem Reports thereafter. It was reported that the likely cause of death in each case, subject to confirmation by a forensic pathology expert, was that death was caused by suffocation via drowning. I note however that no forensic examination results confirming the preliminary findings of Dr. Dokup are contained in the depositions.

45. Other factors that operate against the prisoner are; first, although no weapon was used in the killings, the prisoner intentionally caused each of the children to die a slow death by drowning in the cold waters of the Kum River and the manner in which they were made to drown was cruel and inhuman; second, the children's killer was their own mother who acted in breach of the trust that existed between her and the young children; third, the killings were pre-planned or pre-meditated; fourth, the prisoner was intent on executing her evil plan and had a strong desire to kill the children let alone intending to kill herself as well, as she put into action her plan at night and in the absence of her husband to avoid detection and further demonstrated by her dressing herself up and the children preparing for death and tricking them that they were going to see a relative residing near Kum River, then leaving their home late in the evening at about 11:00 pm and walking several kilometers with the children to the spot along the Kum River where the crimes were committed and time spent at the river with the children including praying with them before committing the crimes; fifth, the prisoner, as the Pre-sentence report shows, is a Christian, being a member of the Roman Catholic Church and matured woman aged twenty eight years at the material time and living near Mt. Hagen who should therefore have known that killing was expressly prohibited by one of the Ten Commandments in the Holy Bible (Exodus 20:1-17 and Deuteronomy 5: 6-21) which says, "Thou shalt not kill" (sixth commandment - Exodus 20:13; Deuteronomy 5: 17) and also against the laws of the country more particularly homicide offences (wilful murder, murder, manslaughter and infanticide); the killings in my view, which I beg to differ with the defence, were cold-blooded as all wilful murders are supposed to be; sixth, the lives of four completely innocent, defenceless and harmless young children were prematurely terminated; and seventh, the offence of wilful murder is prevalent.

46. The factors which I take into account which go to extenuate the crimes or mitigate them in the present case are; first, she acted alone; second, she voluntarily surrendered to the police; third, she cooperated with the police and made early admissions of her guilt which were recorded in her Confessional Statement dated 9 July 2009 and the Record of Interview conducted on 28 and 29 July 2009; fourth, she pleaded guilty to all four counts which therefore saved the Court's time and expense of conducting a contested trial to determine her guilt; fifth, her personal antecedents show that she does not have any prior conviction thus is a first time offender and is neither a habitual criminal nor a serial killer; sixth, this was an isolated incident; seventh, she expressed or demonstrated remorse and contrition (Public Prosecutor v Tom Ake [1978] PNGLR 469, John Elipa Kalabus v the State [1988] PNGLR 193); eighth, she is an unsophisticated illiterate villager; and ninth, there was provocation in the non-legal sense. The last two factors are extenuating circumstances.

47. As I have alluded to earlier, Mr. Kesan for the prosecution did not call for the death penalty to be imposed. However, I must state here that that does not stop me from considering it.

48. The only issue for my determination now is whether the gravity of the crimes has the effect of reducing the weight to be given to the mitigating factors and extenuating circumstances and render them completely insignificant such that it would warrant the imposition of the death penalty?

49. As to the two factors which I have identified as amounting to extenuating circumstances, I make the following additional observations. First, I have not given much weight to the fact that the prisoner lacks sophistication and is illiterate because as I have stated earlier, being a Christian and living near Mt. Hagen she would have known the wickedness and unlawfulness of her criminal conduct which was against biblical teachings and also contrary to the laws of the country. As to de facto provocation, it is quite apparent from the depositions that the prisoner has not had a happy marital life which in short was riddled with constant domestic upheavals at home including constant assaults meted out on her by her husband: see the Confessional Statement and Record of Interview. She has, on many occasions, had to see leaders in the village to help her with her problems. This is contrary to the statements of Leo Meninga, Rosa Anis and Theresia Pais. The conflict in the evidence as to the prisoner's marital life prior to the incident should in my view benefit her. The prisoner's husband was away from home for a week prior to the incident after assaulting her without returning to see her and the children is an example. About ten months before the incident, the prisoner and her husband appeared before the Village Court at Kuia because her husband had assaulted her is a further example: see statement of Pugl Kunjil. I consider therefore that the prisoner should be given the benefit of the existence of de facto provocation notwithstanding the presence of special aggravating circumstances.

50. To guide me in the exercise of my discretion, apart from those cases counsel have referred me to, I have also considered the sentences imposed in The State v Kepak Langa (No.2) (2003) N2462, PGNC48, Steven Loke Ume, The State v Upano Manake (No 2) (2006) N3504, PGNC174, The State v Sedoki Lota and Fred Abenko (2007) N3183, PGNC167, The State v Clarence Tema Mongi (2007) N3259, PGNC135, and The State v Ambrose Lati (No 2) (2009) N3740, PGNC121.

51. In Kepak Langa (No.2), the deceased was in the company of two other siblings, their father and two other men walking to a neighbouring village situated along the main highway to catch a vehicle to go to Wabag when they were ambushed by the prisoner and others who were armed with guns, bush knives and axes. The deceased was chopped several times on the forehead with bush knives and axes by the prisoner and his accopmlices and died from the injuries sustained. The deceased and the prisoner were from the same tribe. The court found that a killing in cold blood of a defenceless and unsuspecting person in an ambush must be categorised as falling within the "worst type" of wilful murder cases. The prisoner was found guilty of wilfully murdering the deceased after a trial where he unsuccessfully raised a defence of alibi and subsequently sentenced to death.

52. In Steven Loke Ume, the appellants were part of a group conducting a payback killing of an innocent woman in a most brutal and horrendous way, causing much pain and anguish. She was tortured and made to die a slow and painful death. The appellants appealed to the Supreme Court against both their conviction and sentence of death. Their appeals against conviction were dismissed. The appeals against their sentences were upheld resulting in a substitution of the sentences of death imposed on each of them by sentences of life imprisonment. That was on the basis that the trial judge failed to take into account factors and personal circumstances favourable to the appellants.

53. In Upano Manake (N0.2), Kandakasi, J convicted the prisoner of two counts of wilful murder after a trial and sentenced him to life imprisonment on both counts. In that case, a group from Kerema consisting of two boys and two girls left Kerema and were heading for Lae on foot from Mamuro after getting there by dinghy from Kerema. When the group arrived at Kanabea, they were joined by a male person who was to act as the group's guide or escort. Whilst on the way, near the Taure River, a gang of five men armed with bows and arrows and bush knives held them up, stole their belongings, raped the girls, tied their hands and threw them into the river. The person acting as the group's guide or escort was actually part of the gang and led the group to the gang for the purposes of committing the crimes perpetrated against the victims. The girls managed to free themselves and swim ashore to safety as their hands were tied in front with vines. The boys however, drowned and died as their hands were tied at the back with barbed wire. The decomposed body of one of the boys was found by a search party about a week later floating amongst some logs with his hands still tied to his back. The body of the other boy was not found. One of the reasons for not imposing the death penalty there was that there was no evidence of the prisoner directly taking steps that eventually led to the death of the boys.

54. In Sedoki Lota and Fred Abenko, Sevua, J convicted the two prisoners on their pleas of guilty to wilfully murdering the deceased who was suspected of practicing witchcraft or sorcery at a village on the Normanby Island in Milne Bay Province and both of them were sentenced to death. It was alleged that this was a payback killing which was to avenge the deaths of the prisoners' parents whose deaths they suspected were caused by the deceased. The prisoners and other accomplices were commissioned to kill the deceased with cash and traditional wealth offered as reward, a contract killing situation. They entered the deceased's house while she was asleep, woke her up and tied both her hands behind her back, blindfolded her with a piece of laplap and then decapitated her head with a bush knife. His Honour accepted that the belief in sorcery is common in many parts of the country and therefore could be a mitigating factor, but stressed that the belief in sorcery should not be a bar to the imposition of the maximum penalty in a serious wilful murder case. His Honour went on to hold that the circumstances of the killing were so callous and unimaginable, it was a premeditated execution-style killing in which the culpability of the offenders was so grave that it warranted the death penalty.

55. In Clarence Tema Mongi, the prisoner was convicted of wilfully murdering a seven year old female on a plea of guilty and was sentenced to death. The deceased had gone into the bush to collect galip nuts when she bumped into the prisoner. At the time, the prisoner was affected by marijuana. He grabbed her, punched her several times and then twisted her neck causing instant death. After the deceased had died, the prisoner pushed his fingers into her vagina and anus and then sodomised her. The prisoner later carried the deceased to a small cave and hid the body. The body was recovered in the evening following a search.

56. In Ambrose Lati (No.2), Yalo, AJ convicted the prisoner of one count of wilfully murdering his step son after a trial and sentenced him to death. The deceased was the biological son of the prisoner's wife's eldest sister. When he was three months old, his mother gave him away to her sister for adoption. When the deceased's adopted mother got married to the prisoner, they raised him as their eldest child. Before the deceased's maternal grandmother died, as she did not have a son, she gave the deceased, her only grandson at the time, her land and property. Therefore, when she died, the deceased inherited the land located directly across the street from his step father's land. It was in the early hours of the morning at about 4:00 o'clock when the incident occurred. Before the incident, the deceased had joined neighbours to chase would–be thieves who had attempted to steal a motor vehicle along the street where they resided. When the deceased went to the back of his house and downhill towards a creek in search of the would-be thieves, the prisoner was already there positioned about fifteen metres downhill from the deceased's house armed with a pump action shotgun. As the deceased approached with only a torch in his hands, the prisoner fired the first shot at close range, but missed. He fired the next shot from the same position, but again missed. On his third attempt, the prisoner shot the deceased at point blank. The deceased died instantly. The medical report indicated that the pellets penetrated from the left side of the deceased's skull and exited from the right side blasting away his brain tissues.

58. As I have stated earlier, the present case is unprecedented. The prisoner who is the biological mother of the deceased children intentionally caused their deaths. Women must bear in mind that a child once born alive has a right to live as is guaranteed by s.35 of the Constitution whether one likes it or not. In this case, the prisoner had ample time to call off her plan, but she persisted. Furthermore, the prisoner was driven by the problems of her marriage to kill the young, innocent and defenceless children in the manner she did. It gives me much pain to think that the deceased children who were of tender years were made to suffer slowly to their deaths by drowning in the cold waters of the Kum River. They had nothing to do with the problems. Even if they were part of the problems experienced by the prisoner in her marriage, the prisoner had no right to shift the problems she was overwhelmed with onto them and offer them as sacrificial lambs as it were for a solution. The crimes she committed were callous, cruel and inhuman and would cause anger and utter revulsion in any right minded member of the community as was the case here. She had no regard for the sanctity of human life and the children's right to live. To demonstrate the widespread public condemnation and outrage brought about by the killings both here and throughout the country, it is public knowledge that a public funeral service was conducted at the Queens Park Oval here in Mt. Hagen organised by relatives of the prisoner and her husband's and prominent members of the general public. The prisoner survived, hence is now facing the full force of the law for killing her young children.

59. I have considered imposing the maximum penalty of death, but having considered all of the factors for and against the prisoner, the comparable sentences and the submissions of counsel, I consider that it will not be just and appropriate to do so. Whilst the killings were 'unthinkable, consciousless, senseless, pitiless and unnecessarily torturous' (to borrow the words from paragraph 66, p.34 of the judgment in Steven Loke Ume), the mitigating and extenuating circumstances applied in their totality operate to diminish the culpability of the prisoner hence the imposition of the death penalty is not warranted. The judgment of the Court therefore is that the prisoner is sentenced to life imprisonment in respect of all counts to be served concurrently in hard labour at the Baisu Correctional Institution. The prisoner may be considered for parole in accordance with the provisions of the Parole Act.

Sentenced accordingly.
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Acting Public Prosecutor: Lawyer for the Prosecution
Public Solicitor: Lawyer for the Defence

National Court of Papua New Guinea

State v Onda [2011] PGNC 276; N4988 (19 January 2011)