State v Kilala [2012] PGNC 282; N5080 (13 December 2012)

N5080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 802 OF 2011

THE STATE

V

LADIMAT KILALA, DIMAN NANAT, YANG NANAT & BATIL
RAGIA (NO.3)

Kokopo: Lenalia, J
2012: 16th October,
8th & 12th November
& 13th December

CRIMINAL LAW – Charge of willful murder – Sentence – Factor for consideration – Criminal Code s. 299.

CRIMINAL LAW – Charge of willful murder – Sentence after finding of guilty –
Consideration in favour and against the four accused – Killing not worst type case – It does not warrant imposition of death penalty – A term of years appropriate.

Cases cited

Goli Golu-v-The State [1979] PNGLR 653
Avia Aihi (N0.3)-v-The State [1982] PNGLR 92
Ure Hane-v-The State [1984] PNGLR 105
Lawrence Simbe-v-The State [1994] PNGLR 38
Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State SCRA 10 of 1997
Manu Kovi-v-The State (2005) SC 789
Joseph Enn v The State (2004) SC 738
Max Java v The State (2002) SC 701
The State v Joseph Ulakua (2002) N2240
Alois Peter Bore Kovei v The State (2001) SC 678
The State v Kevin Wakore (2007) N3222
The State v Isaac Nickson & 2 Others (14.9.07) Cr.No.1076 of 2005
The State v David Yakuye Daniel (No.2) (2005) N2890
Joseph Nimagi, Tom Gurua Kerua and David Bawai Laiam v The State (2004) SC741
The State v Charles Langu (No.2) (2004) N2652
The State v Kiri Kirihau Harisu (2006) N3168
The State-v-Gregory Kiapkot & 4 Others (2012)
The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010
The State-v-Seth Ujan Talil (2010) N4159

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin, for Accused

13th December, 2012

1. LENALIA, J: The four accused were indicted with one count of willful murder contrary to section 299 of the Criminal Code. They pleaded not guilty on the grounds that they did not intend to kill the victim Damia Kilala. On 16th of last October 2012, the court found the four accused guilty on the charge of wilful murder. The maximum penalty for the crime of wilful murder is death. Section 229(1)(2) states:

"299. Wilful murder.

(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.

2. On 16th October 2012, this court found them all guilty on the charge of wilful murder. After having heard the four accused on their allocutus and counsels' addresses on sentence, all that remains is for the court to decide what penalty should be appropriate to impose on the four accused.

Addresses on Allocutus.

LADIMAT KILALA.

3. On the address on his last say, the accused did not show any remorse and only said, he does not know anything about the trouble he is accused of. To this court I take it that, the prisoner is saying he is not guilty of the charge that he was found guilty of.

DIMAN NANAT.

4. In case of prisoner Diman Nanat, he said, he respects the court's decision but he is innocent. He expressed no remorse.

YANG NANAT.

5. On his allocutus, the prisoner said, he has been found guilty and added he does not know about the trouble they are in court for.

BASIL RANGIA.

6. This prisoner mentioned similar comments as the others. He said, he does not know about the trouble.

Defence Address on Sentence.

7. Mr. Kaluwin of counsel for the four accused asked the court to consider the following mitigation:

➢ All the four accused are first time offenders.
➢ The offence they committed is related to the relative of the four accused.

Counsel submitted that, this case is not the worst type case to warrant imposition of
the death penalty. Counsel submitted that this case would fall into category 1 or 2 in the tariff of sentences suggested in the recent case of Manu Kovi-v-The State (2005) SC 789.

Prosecution's reply and address on Sentence.

8. Counsel representing the State, Mr. Rangan replied by saying that, the killing on this case was willed and the court should consider protection on the sanctity of life to save guard the community's interest. He submitted that, a sentence in the vicinity of category 2 suggested in the Manu Kovi's case (supra) be considered.

Application of Law.

9. The maximum penalty for the offence of wilful murder is death. The Criminal Code does not define how such penalty should be carried out nor does it authorize who can carry or effect such penalty. This is despite the fact that the life imprisonment was amended into the death penalty in 1991, nothing has been done by our legislators to implement such penalty. In any event s. 597 of the Criminal Code states that, where the death penalty is considered, an accused can be sentenced to be hanged by his or her neck until he or she dies. The Head of State will have to appoint a place and time for the execution of such sentence.

10. All four accused are charged with the highest homicide case. The maximum penalty for wilful murder is death and the maximum penalty for murder and manslaughter is life imprisonment. On the instant case, the four prisoners can be sentenced to death. What remains for the court to do is consider an appropriate penalty that will befit the crime charged.

11. On wilful murder cases in Hure Hane-v-The State [1984] PNGLR 105, Bredmeyer, J; set out eight (8) categories of serious wilful murder which can be categorized as worst type killings. They include:

➢ a wilful murder committed in the course of committing thefts, robbery, break and enter or rape,
➢ wilful murder of a policeman or prison officer acting in execution of their duties,
➢ wilful murder done in course of resisting arrest or escape from lawful custody,
➢ wilful murder of person in police or court custody,
➢ a payback killing of completely innocent person,
➢ a second or third murder,
➢ a wilful murder committed by a person having a long record of violence, wilful murder of VIPs.

12. Since the reintroduction of the death penalty in 1991, a number of accused offenders have been sentenced to death. The first of those cases where the death penalty has been imposed is The State-v-Ombusu (Unreported National Court Judgment of 17th February 1995). That was the case where Doherty; J. imposed the death penalty on the accused, a man from Popondetta for wilful murder.

13. On appeal by the appellant in that case, the Supreme Court comprising of five men bench upheld the appeal in both conviction and sentence for rape and wilful murder were quashed on technical grounds only, (See Ombusu-v-The State [1996] PNGLR. 335).

14. The second case where death penalty was imposed in this jurisdiction after the re-introduction of the death penalty in 1991 was in The State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997) where Woods; J. sentenced the three accused to death for what His Honour in that case considered to be one of those worst type cases. The three appellants appealed, against both convictions and sentences of death, after grant of legal aid by the Public Solicitor a Supplementary Notice of Appeal was filed on 23 July 1997 in which they appealed against conviction only.

15. The Supreme Court comprising of Amet; CJ: Kapi; DCJ: (as they were then) and Sevua; J: dismissed the appeal against conviction only, (see Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State SCRA 10 of 1997 decision dated 4 May 2000). The appeal against sentence under the original notice of appeal could not proceed before that bench because it was not clear from the supplementary notice of appeal whether the appellants had abandoned their grounds of appeal against sentence. The appeal against the sentence was finally determined on 19 May 2006 by a five (5) member Supreme Court bench comprising of Kapi CJ; Injia DCJ; Los, Hinchliffe & Davani JJ. The appeal was allowed and the death sentences imposed on each appellant by the National Court in Kimbe on 7 February 1997 were quashed.

16. There are other cases which I do not wish to refer to where offenders had been sentenced to death. However on the most recent cases in this Province is that of The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381 a multiple wilful murder case of eight (8) victims who were killed on the sea between Duke of York islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province. The court in that case found that, the first accused had been upset with the owners of the boat Palex in regard to an incident that occurred back home where one of his relative was severely injured. Due to that, he then conspired with the other co-accused who set up a plan to ambush passengers of the boat called "Palex".

17. When the said boat sailed to the point at Makada Duke of York Islands, the two boats carrying the offenders waited and eventually ambushed the boat and all its eight passengers were shot and the bodies were thrown away into the sea. All the five (5) accused were sentenced to death by Sawong J by hanging until they die.

18. A co-accused in the above case Kenny Wesley in The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010, the co-accused of the above case, he was also found guilty and sentenced to death by hanging until his death. The presiding Judge, Maliku, AJ was also of the view that, the case was one of the worse type cases warranting the death penalty.

19. It is trite law that the maximum penalty ought to be reserved for the worst type cases encountered in our criminal practice. What remains for the court to consider is whether the cases before me warrant imposition of the maximum penalty. As alluded to earlier, the highest penalty the court can impose for the offence of wilful murder is death.

20. It is established law that the maximum penalty ought to be reserved for the worst type case: Goli Golu-v-The State [1979] PNGLR 653, see also Avia Aihi (N0.3)-v-The State [1982] PNGLR 92 and Ure Hane-v-The State [1984] PNGLR 105. The case of Lawrence Simbe-v-The State [1994] PNGLR 38 establishes that, each homicide case must be decided on its own facts and circumstances.

21. The instant case would fall into the first or second categories suggested by the Supreme Court in the case of Manu Kovi-v-The State (2005) SC 789. The Supreme Court suggested that, in a case where it is uncontested with mitigations and aggravations, sentences for this type of offence should range from 15 to 20 years imprisonment.

22. For the second category, the Court suggested sentences from 20 to 30 years imprisonment for contested or uncontested cases with mitigating factors and aggravating circumstances in cases where there was no motive for the killing and where as a result of the attack, multiple wounds suffered resulting in instant death. Other circumstances such as vicious attack on an innocent person resulting in fatal wounds inflicted on vulnerable parts of the body.

23. I have considered all mitigations submitted on behalf of the four accused. I consider the fact that they are first offenders. However on the other hand, I take into account the serious nature of this kind of mob killing. I take into account the fact that, the victim was an innocent person.

24. He was brutally attacked and he died instantly on the scene of the killing. He was repeatedly assaulted and stoned until he fell down to the ground and died instantly. Despite calls from Eliakim To Liu and his wife Vavuel Linsi to the four accused to stop assaulting the victim, no one took notice of such calls. As found on the trial, this was a merciless killing.

25. I now refer to some wilful murder and murder cases. Sentences for murder and wilful murder cases have increased due to the prevalence of this crime. For instance in Joseph Enn-v-The State (2004) SC 738, the appellant was sentenced by the National Court to a term of 20 years imprisonment. The offence took place in upper Chimbu, Chimbu Province where clansmen and their women folks had gathered to resolve an outstanding dispute. In the course of the attempted settlement, an argument between the parties and a man and a woman had a fight. Another clansman stopped them. As the deceased sat down the appellant walked up to where the deceased sat and cut his head off. On appeal, the Supreme Court said, the sentence was very lenient. The appeal was dismissed.

26. In Max Java-v-The State (2002) SC 701, the appellant pleaded guilty to one count of murder. He was sentenced to 20 years imprisonment. He appealed on the grounds of severity of sentence. The appeal was dismissed by the Supreme Court because the sentence was appropriate to the degree of violence taken by the appellant. In The State-v-Joseph Ulakua (2002) N2240, a case in the National Court, the prisoner was sentenced to 20 years imprisonment for the murder of his wife.

27. In Alois Peter Bore Kovei-v-The State (2001) SC 678 an unreported judgment, the appellant appealed against a sentence of life imprisonment. The murder in that case was committed in pursuance of abduction and rape. The trial judge considered that that was a worse type offence. On appeal the Supreme Court dismissed his appeal although he appeared to be a young offender he however had a criminal record against him.

28. In The State-v-Kevin Wakore (2007) N3222, the prisoner was charged with one count of murder. He was convicted on his plea. He was sentenced to 12 years imprisonment by Cannings; J. In that case two clans in the Talasea area of West New Britain had a confrontation over an allegation of adultery with another man's wife. In the course of the argument, the offender got a gun and shot the victim dead. He was rushed to a nearby Health Centre, but he died on the way.

29. In The State-v-Isaac Nickson & 2 Others (2007) Cr.No.1076 of 2005 unreported judgment, the three accused were charged with murder. They pleaded guilty before this Court. They were sentenced to 25 years imprisonment. That was a killing in the inland Bainnings where the prisoners had suspected the victim of performing sorcery on their dead relative. They went to his house about between 9 and 10 pm. They woke him up and when he walked out through the door, one of them pushed a long bush knife through his belly causing him instant death.

30. In The State-v-David Yakuye Daniel (No.2) (2005) N2890, a case in West New Britain, the prisoner was convicted of stabbing his wife, whom he suspected of having an affair with another man.

31. There was evidence that the prisoner had, prior to the incident in which he killed his wife, attempted to sort out their marital problems by peaceful means. The defences of self-defence and provocation were rejected at the trial. Cannings; J sentenced the offender to 25 years imprisonment for the offence of murder.

32. In the case of Joseph Nimagi, Tom Gurua Kerua and David Bawai Laiam -v-The State (2004) SC741 only the last defendant appealed against a sentence of 50 years for the murder committed in a failed armed robbery. The Supreme Court dismissed the appeal on the basis that, the sentence was too lenient.

33. In The State-v-Kiri Kirihau Harisu (24.10.06) N3168, the prisoner pleaded guilty to one count of murder before Kandakasi; J. In that case, the offender approached the victim (Haro Lovakaea) with the intention of shaking his hands. The victim uttered words to the prisoner to the effect that he would kill him as he did to his father. The accused grabbed an axe from the victim's house and chased him down to the beach. After they struggled, the offender overpowered the deceased. He picked the axe and cut the deceased twice. The deceased eventually died. He was sentenced to 22 years imprisonment.

34. There are other wilful murder cases where Judges of this Court have imposed terms of years. For instance, in The State-v-Seth Ujan Talil (2010) N4159, Cannings, J imposed a sentence of 40 years for a double murder committed during a mediation proceeding. Seth Ujan Talil was convicted after trial of two counts of wilful murder. The two deceased were brothers aged 35 and 42 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The doctor found that the cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

35. In The State-v-Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae, the prisoner was found guilty and convicted of the wilful murder of an innocent young man. The deceased in that case was abducted by the prisoner and his accomplices allegedly in retaliation for the death of a young man and cut with bush knives and axes all over his head face and stabbed several times on his chest until he bled to death. The court found the case to be a worse case of wilful murder. It described the killing as "heinous, senseless, brutal, barbaric and cold blooded". The offender was sentenced to life imprisonment.

36. In The State-v-Wilson Okore, (2009) CR No.584 of 2006, Unreported & Unnumbered Judgment, the same Judge imposed a term of 50 years for the offence of wilful murder. It was a case in Lae where the offender pleaded guilty to the murder of the deceased who was suspected of practicing evil sorcery upon his aunt which caused her to suffer drowsiness and severe headaches. The deceased and the prisoner's aunt were colleagues. The prisoner ambushed the deceased near his house early in the evening while it was raining heavily when he went out of his house to wash.

37. As the victim was trying to wash after undressing the offender attacked him with a long bush knife resembling a sword stabbing him several times to death in the process. The court described the attack on the deceased involved pre-planning and was ferocious and mercilessly driven by rage or hate over the superstitious belief that the deceased had caused or done sorcery upon the prisoner's aunt causing her to fall ill. A sentence of fifty years imprisonment in hard labour was imposed.

38. As a warning against merciless killings occurring everywhere in the country sentences for homicide crimes must be increased. I endorse and adopt what Cannings; J said in The State-v-Charles Langu (No.2) (26.8.04) N2652 where His Honour said at p5 of that judgment:

"There has been widespread concern about the prevalence of murders and other violent crimes, particularly murders committed in the course of armed robberies or other unlawful activities. The Court was critical of the length of terms of imprisonment that have been imposed in murder cases. They have been too lenient. The Court was critical of the propensity of the Public Prosecutor to indict for murder, when the seriousness of the charge warranted a wilful murder indictment; or to indict for manslaughter instead of murder. The Court also criticised the Public Prosecutor for not using his power to cross-appeal against apparently lenient sentences. Too much of the Court's valuable time and resources is being wasted on frivolous prisoner appeals.

The Supreme Court emphasized that life imprisonment for murder is the starting point when the Court has to work out what the appropriate sentence is. Only where a person has pleaded guilty and there are no factors in aggravation should a sentence of the magnitude... – around 12 years – be considered.

The Supreme Court is saying clearly that the National Court must impose longer sentences than it has in previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes."

39. I adopt the comments made in the above case and apply them to the circumstances of this case. I have cited the above cases to illustrate the seriousness of the crime of murder and wilful murder and the sentencing trend taken by the National Court and Supreme Court on appeals. This approach reflects a signal that there is so much killings in all communities in the country and sentences for the offence of wilful murder and other homicide cases must be increased in the hope to deter this heinous crime. There is no respect for life and people who come to court for any homicide crimes must meet the full brunt of the law even if it means the death penalty in case of wilful murder cases.

40. The unlawful taking of another person's life has always been serious and as such offenders must be appropriately punished depending on whatever mitigations and aggravations that might be considered relevant in each case. The victim of this case pleaded for mercy from the four of you. You did not heed such calls. You continued beating him until he died on the spot.

41. Let me say this, the basic principle is that the sanctity and value of a human life is far more precious and valuable than anything else must be given prominence by the Courts. That is why the Parliament fixed the maximum penalty for wilful murder to be death while life imprisonment for murder and manslaughter. Putting that in another way, if someone mercilessly shoots a person with a gun, why have mercy for the killer? The Biblical saying "eye for an eye" and "tooth for a tooth" should be considered by the Courts and this is exactly what the Parliament has done for wilful murder cases by fixing the maximum penalty at death.

42. Every person has a right to the protection of life pursuant to sections 35 & 37 of the Constitution. The earlier Section states:

"35. Right to life.

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

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; 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—

(i) for the defence of any person from violence; or

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

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war.

(2) Nothing in Subsection (1)(b) relieves any person from any liability at law in respect of the killing of another."

43. As such nobody must deprive anyone of his or her life because it is protected by law in accordance with the Constitution and the Criminal Code and the whole body of law in this jurisdiction. Every person living in Papua New Guinea whether he is a citizen or non citizen is entitled to the protection of the law pursuant to s.37 of the Constitution. Subsection (1) of that Section states:

"37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences."(Emphasis added).

44. The prisoners mercilessly slaughtered the victim without fear of the law. They used pieces of timbers and stones to attack the victim leaving him with serious injuries which caused instant death. You continuously tortured the victim by applying all types of objects like wood, stones and even your hands to hit the victim until he passed out.

45. The basic principle that the sanctity and value of a human life is more precious and valuable than wealth must be given very serious consideration by this Court. Neither wealth nor worldly business nor money paid in the form of compensation nor even any remorse would restore or revive a life that has been lost. I consider the fact that the deceased was an innocent man. He did not expect to die like a dog that night. You four brutally murdered him.

46. The life of the victim in this case has now been lost for good. He was entitled to the protection of the law envisaged by s.37 of the Constitution. Neither wealth nor anything of this world paid in compensation or even any remorse would assist to restore or revive or resurrect a life that has been lost. Once it is lost, it is lost forever. That is why the parliament thought that the penalty for the crime of wilful murder should be death.

47. Having considered all mitigations and aggravating circumstances of this case and the sentencing tariff set by the Supreme Court in Manu Kovi-v-The State (supra), your case would fall into the second or third category in the above case.

48. Considering counsels' submissions on sentence and what you have said in your allocutus, I consider that this case does not warrant imposition of the death penalty. I therefore consider that the appropriate penalty should be 30 years imprisonment.

49. The four prisoners are sentenced to a term of 30 years imprisonment in hard labour. The custody periods shall be deducted from this sentence and they shall serve the balance.

________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoners