State v Emmanuel [2013] PGNC 350; N5125 (19 March 2013)

N5125

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.1198 OF 2009

THE STATE

V

TONY EMMANUEL

&

CR. 1201 OF 2009

THE STATE

V

EDWARD YAU

Wewak: Kirriwom, J

2012: 19, 20, 23, January
17 February,
29 March &
19 November
2013: 19 March

[NO.2]

CRIMINAL LAW – Sentence – Wilful Murder – Cold-Blooded Murder of Unarmed and Defenceless Relative – Repeated attack with machete severing left arm and left leg – Prisoners gave orders to attack and encouraged by words and conduct – Prisoners threatened and prevented another villager transporting deceased to hospital to seek medical assistance – Deceased bled to death – Determinate sentences appropriate.

PRACTICE AND PROCEDURE – Absence of co-prisoner – Escaped from custody after conviction and before sentence passed – Implied consent for trial to continue without him – Sentence passed in his absence.

Cases Cited:
Papua New Guinea Cases:

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 SC321
Kavali v Hoihoi [1984] PNGLR 182.
Manu Kovi v The State [2005] SC678
The State v Yapes Paege & Relya Tanda [1994] PNGLR 65
The State v Arua Maraga Hariki [2003] N2332 (3 February, 2003),
The State v Mark Poroli [2004] N2655 ( 25 August, 2004),
The State v Kepak Langa [2003] N2462 ( 26 September, 2003)
The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546
The State v Ambrose Lati (No 2) (2009) N3740
Charles Ombusu v The State [1996] PNGLR 335
Tony Imunu Api v The State [2001] SC684 (29/8/01)
The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741
Imiyo Wamela v The State [1982] PNGLR 269

Overseas Cases:

Jones (No 2) (1972) 56 Cr App R 413

Counsel:

A. Kupmain, for the State
F. Lunge, for the Prisoners

REASONS FOR SENTENCE

19 March, 2013

1. KIRRIWOM, J.: Tony Emmanuel aka Tony Emmanuel Kazira together with co-accused Edward Yau aka Edward Yau Yaulimbo, both from Kawanumbo village, Boiken, Dagua LLG ESP were found guilty and convicted of wilful murder on 17 February, 2012 after a three days trial following their not guilty pleas. The court was satisfied beyond reasonable doubt on the overwhelming evidence against them and returned a verdict of guilty for the wilful murder of George Wosimbu on 11th April, 2009.
   
2. Since the pronouncement of the court's verdict, co-accused Edward Yau escaped from the custody of the Boram Corrective Institution where he was remanded to await his sentence. Today, only Tony Emmanuel appears from custody to receive his sentence. Edward Yau will also be sentenced today in absentia.
   
3. The law relating to the court's powers to impose sentence or complete a trial in the absence of the accused is now settled in this jurisdiction. It is a constitutional right of persons charged with criminal offence to be present and also on appeal to be present throughout the hearing of their case or appeal. That is guaranteed under section 37(5) Constitution which provides:
   

""Except with his own consent, the trial shall not take place in his absence unless he conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence...."

4. In this case where the prisoner escaped lawful custody of the prison, does this right continue to apply to him? Obviously not. By his conduct he has forfeited his right to be present for the continuation of his trial. The same question was considered by the Supreme Court in SC321–Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329 where the Court laid down three fundamental principles for consideration before a court proceeded to deal with a case in the absence of the accused. Firstly, it is the duty of the court to zealously safeguard the right of the accused guaranteed under section 37(5) Constitution and if such right must be denied the accused, it must ensure that the circumstances of a particular person come within the exception specifically outlined in the Constitution. Secondly, if the person's consent is to be waived, court must be satisfied of special circumstances implied from the person's conduct or behaviour that the person charged elects to be absent, and absents himself through caprice, malice or for purposes of embarrassing the trial. Thirdly, mere failure to appear cannot found implied consent. "Consent" to trial in the absence of the person charged may only be implied, where, in the absence of direct consent, there is some good reason, deriving from particular and unambiguous circumstances upon which the court can base a decision to imply consent.
   
5. In Thomas Kavali v Thomas Hoihoi (supra) it was a simple traffic offence of consuming beer in a moving vehicle under the Liquor (Miscellaneous Provisions) Act Ch 313 under which the Appellant was charged. Half way through the trial, the appellant did not show up. There have been numerous adjournments at the request of the defence already. The last adjournment was to allow the Appellant to secure services of another lawyer when the last lawyer walked out on him by the lawyer's own conduct. The learned magistrate decided to continue the trial ex parte despite police prosecution application for warrant of arrest while seeking further adjournment. The court proceeded to find him guilty and convicted him and imposed a fine in default imprisonment. The appellant appealed the learned magistrate's decision but the National Court dismissed the appeal while confirming the magistrate's decision. See Kavali v Hoihoi [1984] PNGLR 182. The appellant further appealed to the Supreme Court.
   
6. Woods J seemingly taking similar view as Bredmeyer, J in the National Court said:
   

"I am satisfied that consent can be implied by actions as well as by express consent, however such actions must be capable of unambiguous interpretation. Thus one must look at the circumstances at the time. A mere failure to appear would not necessarily imply consent, it must be something more deliberate than that. A person who walks out of a hearing with no explanation could be deemed to be absconding or saying "I do not care if you carry on without me".

7. For purposes of this case, I am more inclined to agree with Bredmeyer, J where he relied on the English case of Jones (No 2) (1972) 56 Cr App R 413 where the Court of Criminal Appeal upheld the trial judge's decision to proceed with the trial in the absence of the defendant held:
   

"'Whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless (i) he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the judge may have him removed and may proceed with the trial in his absence, or may discharge the jury, (ii) he waives that right by voluntarily absenting himself eg by absconding during the trial. In such a case the judge has a discretion, which should be exercised with a view to the due administration of justice rather than the convention or comfort of anyone, whether to proceed with the trial in the absence of the defendant or not.'

8. There are good grounds for the court in this very serious charge that the accused is required to be present for his trial, to imply consent by the accused for the case to proceed without him. He was not on bail, he was in custody and he broke out of jail. He is therefore an escapee at large with a bench warrant out for his arrest. That unlawful escape is behaviour that the court can rightly infer from to imply that the accused consented for his matter to proceed in his absence. By his conduct he waived his right to be present and the court cannot wait for him as he is an outlaw who cannot be reached by any conventional means of communication. His escape from lawful custody is also obstructing the proceeding by his unseemly outrageous behaviour that amounts to an interference with due administration of justice.
   
9. A further reason that I must proceed on with the case in his absence is that this case alone initially had six or seven accused, all members of the same family or clan who were detained at Boram CS in respect of this killing. At the time this trial commenced, all had escaped except two, Tony Emmanuel and Edward Yau appeared and the trial proceeded. Unfortunately Edward Yau too escaped after he heard the verdict of the court and after the address on sentence by both counsel. No useful purpose will be served to await Edward Yau to walk into this courtroom one day on his own volition for this case to be completed. That will be expecting the unreal. In the circumstances the trial will now proceed in the absence of the prisoner Edward Yau who will be sentenced in his absence.
   
10. The facts of this case have been meticulously set out in my judgment on verdict. It is a most vicious attack and killing of a fellow clansman by his own relatives in a very barbaric and ruthless manner akin to an execution where the deceased is slowly tortured to die in pain and agony right in front of their eyes as the prisoners and their family members showed him no mercy. Instead they rebuked him and spat on him and cold-bloodedly attacked him second time as if the first attack where his left arm was completely severed and he was bleeding profusely was not already bad enough and life threatening but they cut him again on his left leg leaving him with only one arm and one leg.
    
11. Disagreement between themselves was one thing and when serious harm is caused as the result is a different matter altogether. Law abiding and decent peace loving people would say that is enough, enough damage, enough blood and enough pain for the day. But the prisoners and their relatives would not stop at that. They even prevented attempt by another villager from saving a dying man in his vehicle to take him to the hospital, threatening to damage his vehicle if he did. The prisoners were heard to have uttered words to the effect: "kaikai kan, larim ol idai igo."
    
12. It is therefore not surprising that Counsel representing the State asked for nothing less than the maximum penalty of death. Subsection (2) of section 299 states: "(2) A person who commits wilful murder shall be liable to be sentenced to death."
    
13. This is clearly a worst case of wilful murder. It is a worst case of homicide from various perspectives that one can look at it. From the manner and the viciousness and the cold-bloodedness with which the prisoners and their relatives executed this killing upon their own relative, a defenceless man who was not even retaliating, and made mockery of him as he was going through this painful physical torture. It is a worst case of murder because the prisoners are not uncivilised people, they are all sophisticated men under government and mission influence for over a century, and they are not living in primitive lifestyle in the jungle isolated from the rest of the world. It is a worst case of homicide because it's leading perpetrators, in particular Tony Emmanuel, is a highly educated person with a degree from the university and someone who had left his mark in the workplace as an engineer during his working life. He was an industrious person who held senior ranks where he worked and a leader in his own right.
    
14. At his home village of Kawanumbo, he was a leader of his family and his clan and a community leader. He enjoyed a special status in the village that ranked him above others by virtue of his educational background and his experience in the field of his profession. He was looked upon as a leader and a role model for the young ones and his own children in the village.
    
15. This trouble would not have happened and this killing would not have taken place, if Tony Emmanuel and Edward Yau were not there. They spearheaded it and encouraged its happening from the start to the finish. Both Tony Emmanuel and Edward Yau are the real perpetrators as well as ringleaders. They commanded power and authority over their children and siblings to carry out this attack as they stood by and encouraged them on with verbal abuses hurled at the deceased. Their presence was all that was necessary for the young men under them to do the job.
    
16. At no stage during the entire attack upon a helpless and defenceless man did one of them, Tony or Edward, say to the boys, okay that is enough for now. No. They wanted blood and wanted more blood even when the deceased was at Dona Samai's hamlet at Kumalumbo trying to escape from them but to no avail. The sight of their relative holding his severed left hand with his remaining good hand as if to preserve it to have it reattached surgically if possible brought no pity on their faces. Both Tony and Edward verbally abused him more as they spit on him as Jonathan Yau again swung another deadly blow onto the deceased's left leg at the knee joint that severed the fibula. At no stage during this attack did Tony or Edward tell their relatives to desist, they cared less about seeing the deceased winching in pain as he bled profusely from the two deadly wounds that severed major blood vessels in two places and blood was flowing like running water. They knew he was dying and they told him that he was dying as they wanted him to die.
    
17. Both Tony Emmanuel and Edward Yau were not mere spectators. They were active participants and perpetrators whose presence were the driving factor and influence in the behaviour of their siblings and children.
    
18. On allocatus both were given opportunities to address the court. Tony Emmanuel expressed concerns about his family members scattered everywhere since this trouble, especially his four children in tertiary institutions whose schooling is affected by his incarceration. He pleaded that he did not physically cause the death of the deceased. He said that there was retaliation that resulted in three of his brothers landed in hospital outside Wewak. He said the deceased provoked the attack upon himself. Edward Yau also expressed concerns about his six children, five of whom were in school but their school was disrupted by this problem. He was worried about their homes being destroyed as the result of this killing when police went to the village and assisted by the complainants burnt down 20 houses, 4 toyota land cruisers and seriously wounded three of his brothers now disabled. Both expressed remorse for what happened.
    
19. Is this an appropriate case that attracts the maximum penalty of death? I have heard submissions from Mr Lunge who thinks otherwise. He wants the court to apply the sentencing guidelines in Manu Kovi v The State [2005] SC678 and submits that this case falls in the second category which attracts sentence ranging from 20 – 30 years imprisonment. However Mr Kupmain for the State argues otherwise. He wants the maximum penalty saying that there was no provocation. There was to be mediation between them in few days time over their differences regarding their common ancestral lands and which they knew. Something then happened to the deceased when he was trying to make sago and he invited them for peaceful resolution but they brought him war.
    
20. Mr Kupmain submits that there was pre-planning because the beat of a garamut before they proceeded to the deceased's hamlet that day that erupted in violence at the outset of their arrival in Lau hamlet demonstrated clearly their intention to fight before they even left their own camps. And they all went armed to fight. He submits I take into account the following factors:
    
    1. The two prisoners were in position of control to influence the young men they led to the fight, they were in the position to stop the fight and to allow the matter to go to mediation that was due in few days and yet they chose not to. This aggravates their position.
       
    2. The two prisoners not only went to the deceased's hamlet, they gave orders to attack the deceased and his family.
       
    100. Their selfish actions not only affected the deceased, it also affected a large number of other innocent people on both sides.
         
    4. Properties were destroyed
       
    5. Terminated an innocent life.
       
    6. Deceased died a slow and painful death which makes this case very serious.
       
    7. An independent person who wanted to assist the deceased to take him to the hospital was also threatened with harm.
       
21. With Tony Emmanuel's level of education and the leadership positions that both prisoners enjoyed amongst their clansmen they should have known better of the consequential effects of their decision to go to the deceased's hamlet and what happened thereafter following their arrival so they can't now cry over what they brought upon themselves when their properties were destroyed and families scattered everywhere. Violence begets violence. In Papua New Guinea society retaliation, revenge, pay-back or how ever one wants to describe the repercussions of his own actions is not an unforeseeable event so the two prisoners cannot suddenly wake up to the reality and say we suffered losses too. They ought to have known better.
    
22. Besides, it was submitted, there is still no sign of reconciliation between the two groups as they continue to live separately and away from their village. Family members staying away don't even go to their village to bury their relatives who die because of this fear of retaliation still lingering in their minds. Both prisoners have not suggested any plans of bringing back normalcy to the village that they destroyed through selfishness.
    
23. Mr Kupmain submits that this is a worst case of homicide that deserves the maximum penalty of death that even the long service that the prisoner Tony Emmanuel gave to the State just fades into insignificance as it means nothing as a mitigating factor.
    
24. I have perused both the Pre Sentence Report (PSR) and the Means Assessment Report (MAR) and they tell me nothing new that I do not already know from what the two prisoners told the court and what were submitted in their behalf by their lawyer. What the PSR and MAR make quite plain is that both sides do not want non-custodial form of punishment to be an option that the court need entertain and that none of the relatives will help pay compensation if that is ordered given what they have gone though.
    
25. Personal antecedents of the prisoners are as follows:
    

1. Tony Emmanuel
   

Tony Emmanuel is 52 years old. Both parents from Kawanumbo village and already deceased. He is married to a woman from Milne Bay and they have six adult children. But the marriage has since disintegrated following his apprehension and arrest for another offence that the prisoner was convicted of in 2009 after the commission of this offence and he presently serves time for that conviction. And some of the family has since relocated to the wife's village in Milne Bay.

Tony Emmanuel is a well educated man with a bachelor's degree in Science Technology and complimented by two postgraduate diplomas in Local Level Government Engineering and Business Management.

He held Senior Management positions with PNG Water Board around the country and Wewak for a total period of 30 years prior to his remand.

2. Edward Yau
   

Edward Yau is 45 years old, married with six children. Both parents from Yawanumbo but now deceased. He was educated to Grade 6 in 1980 and lived mostly subsistent lifestyle.

But he had done very well for himself and his family with a big permanent building as his home plus two motor vehicles and two chain saws which he lost them all due to this trouble.

Edward continues to protest his innocence and the same tone is echoed by his wife who was also interviewed for purposes of PSR and MAR. Unfortunately the court can only go by what the witnesses say, often under oath, as it does not have eyes of its own that can look past the witnesses to make an independent assessment of its own. This is our system of justice which is universal and not 100% foolproof but is the best we have. The only Judge who knows the whole truth is He, the Unseen One, who knows whether Edward is right or the witnesses whom the court believed are right, and Who will finally judge all of us when that Judgment Day comes in the Next World.

Edward Yau is a Catholic by faith and appreciates what is meant by telling the truth according to the Church's sacraments. Yawanumbo village sits only 300-400 meters above Boiken Catholic Mission according to PSR and no doubt under strong Christian influence.

He was also a member of the Community Police in the village at the time of this trouble.

Unfortunately, at the time of his sentence, he chose to absent himself in court by his voluntary conduct of escaping from the lawful custody of the Boram CS and the court now proceeds to sentence him without his presence.

26. The aggravating features of this case include:
    
    1. Deliberate, intentional, gruesome and ruthless killing carried out in a most cold-blooded and barbaric manner;
       
    2. Killings associated with land disputes amongst and between close family members is becoming prevalent as importance of land in the society is appreciated and increasing population is forcing many to resort to violence to preserve what is theirs.
       
    100. Prisoners showed no mercy on the deceased as he struggled to stay alive as blood flowed profusely and continued to inflict more wounds on his body;
         
    4. They even prevented another person from the village transporting the deceased to the hospital.
       
    5. They destroyed a hamlet apart from killing its head man;
       
    6. They have brought sufferings upon many innocent people who have been forced to leave their village and since have not gone back to Kawanumbo in fear of reprisals. Families have separated and continue to live separately and apart because of this crisis that they brought into motion.
       
    7. No reconciliation has taken place and there is hardly likely that parties will reconcile within the near future;
       
    8. Deceased was attacked in cold-blooded fashion when he was not even defending himself or retaliating in any way;
       
    9. Deceased invited his cousins to explain to him of their anti-social or unfriendly acts towards him by destroying his sago making materials and they turned it into a warfare;
       
    10. It was only matter of days before the mediation over their disputed claims of ownership of their common customary lands and they had not patience to wait until the proper process dealt with their claims but took the law into their own hands.
        
    11. They were the leaders of their clansmen who were mostly their children and siblings and they commanded authority over them and they allowed this crime to be committed with their full authority and permission, if not their counselling and procurement.
        
    50. They live on the edge of Boiken Catholic Mission Station one of the oldest Catholic establishments on mainland Wewak in the Wewak Diocese since the Catholic Missionaries settled in this part of the country and mission influence has been around for over one hundred years for them to know the law and the teachings of the Bible.
        
    13. PNG is notoriously popular for its crimes of violence and this is the international indicator for the type of people we are in this part of the global village that we belong because of people like the two prisoners.
        
27. In respect of each of the prisoner, I bear in mind the following of the prisoner Tony Emmanuel:
    
    1. He is a very highly decorated person with tertiary qualifications and post-graduate diplomas in addition to his primary degree that enabled him to progress through the ranks in his career in the Public Service as an engineer with PNG Water Board for the most part of his career that spanned over 30 years. Person of his calibre and industry is what this country needs most at this critical time of our independence.
       
    2. With his position, he commanded lot of respect and trust from and by his people in his community;
       
28. In his favour I was urged to consider the following:
    
    1. He is physically handicapped as his both wrists are damaged;
       
    2. He is a model prisoner in the prison who leads other prisoners to follow advice of the warders;
       
    100. Expressed remorse
         
29. With respect to Edward Yau, the following matters were urged:
    
    1. In mitigation of penalty-
       
       1. First offence
          
       2. Not well educated
          
       3. Married man with children in school
          
       4. Lost properties of substantial value as result of this crime
          
       5. Expressed remorse
          
    2. What aggravated the offence-
       
       1. He was a fatherly figure who commanded authority to bark orders to his siblings and sons to desist but chose to do the opposite
          
       2. He was personally present and encouraged the commission of the crime
          
       3. He was present and did nothing to prevent the deceased being struck again for the second time when he was already losing so much blood from the severed left hand
          
       4. He did nothing to help deceased find medical assistance
          
       5. He knew of the mediation proposed for the week and failed to allow the matter to be discussed in the proper forum but instead took the law into his own hands
          
30. Matters that the court could take into account as those that mitigate the severity of the crime include the following:
    
    1. Both were not physically involved in the attack of the deceased;
       
    2. Both have wives and children except the prisoner Tony Emmanuel whose family had deserted him;
       
    100. Edward Yau is a first time offender;
         
    4. Both expressed remorse but the sincerity of their remorse is questionable when they are equally unhappy about the loss they suffered in retaliation for their crime by their victims' relatives and policemen.
       
31. It has been said that sentencing is not an art or an act of exact science that one can be precise to the minute detail in respect of each case that comes before the court. Much is dependent on exercise of discretion of the sentencing judge or magistrate depending on the circumstances of each case.
    
32. Is this a worst case of wilful murder ever to be committed requiring death penalty to be imposed? One of the most often cited passages that try to explain the difficulties encountered in differentiating between two scenarios in wilful murder charges as to which of the two is worse than the other is found in The State v Yapes Paege & Relya Tanda [1994] PNGLR 65. That was a case where the two prisoners were found guilty of wilful murder when they chopped the deceased on the stomach so severely in an ambush situation when he went to investigate a noise outside his house in the middle of the night when he was attacked by the two prisoners with their axes and he died in the hosp[ital several weeks later. The trial judge considered it to be a worst case of wilful murder that rightly warranted sentence of death but supporting the Defence team, counsel for State did not seek death penalty. The Court in the end imposed life imprisonment.
    
33. How do you distinguish between a worst case of wilful murder requiring the maximum penalty of death from the not so worse case warranting a determinate sentence? Woods J compared the degrees of worst case scenarios in different crimes at pp.66-67:
    

"Generally, the application of punishment by the Court is a matter of applying a sentence within a range depending on the severity of the offence. Thus, as I have already referred to above, most penalty sections of the Criminal Code use the words "not exceeding". These words are a clear direction to make the punishment fit the severity of the crime. And, of course, most crimes do permit 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 kina 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 it from two other levels of unlawful killings — murder and manslaughter — lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life."

34. What is essentially meant, in my interpretation of what His Honour is trying to deliver in his message, is that when there is intention to kill and death is brought about by that intention manifested by whatever form of violence, it is immaterial what the method is used to achieve that end result. Death is death. There can be no more worse death than death, the termination of life itself.
    
35. Death sentences have been imposed in several cases in this jurisdiction since the death penalty became the law in this country. See The State v Arua Maraga Hariki [2003] N2332 (3 February, 2003), The State v Mark Poroli [2004] N2655 ( 25 August, 2004), The State v Kepak Langa [2003] N2462 ( 26 September, 2003) and The State v. Ben Simakot Simbu (No.2) (26/03/04) N2546 where death sentences were imposed and appealed. To date no information is available on the current status of those cases. Apart from the severity of the penalty provided by law and imposed by the Court, the execution of the sentence is still far from reality for reasons I am in no position to venture into.
    
36. Sections 597, 598, 599 and 614 of the Code are the only other provisions in the law that relate to the sentence of death imposed by the National Court. Section 597 says that a person sentenced to death is remanded in custody until the Head of State has determined the time and place of his execution and then he shall be hanged by the neck until he is dead. And section 598 relates to recording of such execution while section 599 provides temporary reprieve to pregnant women from being executed until after birth.
    
37. Section 614 provides for the method of execution which is by hanging and the process preceding the execution and who can be present for the execution but simply stops short of entrusting the duty to carry out the execution on anyone. Whether this is by deliberate design or by oversight is only a matter for speculation and conjecture. But we do know that there is still more work to be done for this penalty to be enforced in this jurisdiction apart from it being available under the Code.
    
38. One of the most vicious and cold blooded murders was The State v Ben Simakot Simbu (No.2) (26/03/04) N2546 where the prisoner asked the deceased a married woman sitting with her two year old child for a chicken on credit. She refused. He asked two more times and still she refused. On the third time she refused he grabbed her and both struggled but he overpowered her and forced her to the ground, forced her clothes off and raped her while the little child watched and cried for his mother. When he had finished he picked up a piece of iron nearby and clubbed her to death with it. Not satisfied with that he turned on the little child and using the same iron bar struck the child on the head and killed him too. The prisoner justly deserved death sentence.
    
39. The most recent case would be the one decided by Acting Justice Yalo in The State v Ambrose Lati (No 2) (2009) N3740. That was a case where the prisoner a well educated man who owned a block of land in Wabag Town that had two permanent houses that he leased out to tenants but wanted another block opposite his that belonged to his step-son who inherited it from his maternal grandmother whose only daughter was married to the prisoner and she was the deceased's step-mother. The deceased was given to her when he was only three months old and when the prisoner married her, he also raised the deceased as his step-son. Since the deceased grew up and assumed ownership of this property, there were constant quarrels and fights between the prisoner and him and even to the extent of the prisoner threatening to kill him and even disowned him as his son and demanded payment for raising him as his son. He was shot a point blank several times at the back of his house. Prisoner was not satisfied what he already owned, he wanted the deceased's block as well and the only way to take possession was to kill the deceased. He was sentenced to death.
    
40. The State v Arua Maraga Hariki (No.2) [2003] N2332 was another classical case where the prisoner was convicted of two counts of wilful murder. The prisoner, the two deceased (Heni and Togiri) and one other called Naime were drinking together when Togiri went to sleep in the vehicle. As they drank the prisoner grabbed Heni by the neck and twisted it deliberately until he stopped breathing and he let go. Naime seeing this ran away. Sometime later bodies of both Heni and Togiri were found on Papa-_Lealea Road. Togiri believed met his death in the same circumstances as Heni. Arua Maraga Hariki was convicted of wilful murder of both men and sentenced to death.
    
41. The State v Mark Poroli [2004] N2655 is a case where the prisoner pleaded guilty to wilfully killing a policeman escorting a suspect by shooting him point-blank at close range while he was watching the prisoner pull the trigger after he was allowed to say his last prayers following a pastor's prayer over him when he was about to be executed. The single shot from the homemade gun travelled through his forehead and damaged his brain by breaking open the skull. He was sentenced to death. with the where he on hiks mother's side In his judgment Kandakasi, J referred to the three earlier death penalty cases and summaries of which are given below:
    
42. The first death penalty case was The State v Charles Ombusu an unreported National Court Judgment dated 17 February, 1994. That was a case where the trial judge found the appellant guilty on one count of rape and wilful murder and sentenced him to death. The appellant raped the daughter of the deceased while an escapee at large and was on the run from the law. The father taking his shotgun went hunting for the appellant in the garden and the locality where the rape took place. When he confronted the appellant face to face, the appellant, who was also armed shot him point blank with his gun. The Supreme Court threw out the conviction and sentence on appeal on technical grounds (see Charles Ombusu v The State [1996] PNGLR 335).
    
43. The second was The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa on 7 February 1997 in Kimbe. Their appeal against conviction was dismissed and no one knows what has become of their death sentence imposed by the National Court which remains intact.
    
44. In The State v Kepak Langa (No.2) [2003] N2462 this was a cold-blooded ambush type attack of the deceased and others by the prisoner and others. It was meant to be a pay-back killing but unfortunately the deceased was an innocent man who became a victim of poor judgment who died as the result of multiple axe wounds to the head.
    
45. It is easy to say that the maximum penalty or the near maximum penalty must be reserved for the worst case scenario in that offence. In wilful murder, the maximum penalty of death must be reserved for the worst case of wilful murder. But what is the worst case of wilful murder? This is the very question that Woods J was lamenting about in The State v Yapes Paege & Relya Tanda (supra) and I endorse fully the sentiments of Kandakasi, J in The State v Ben Simakot Simbu (supra) where he said:
    

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

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

46. In fact that is the one big consolation that keeps us all in the same checks and balance bearing in mind that sentencing is a discretionary matter but exercised with extreme caution and great judicial care. And one classical example of this is Tony Imunu Api v The State [2001] SC684 (29/8/01) where an innocent school kid was killed in the most bizarre circumstances. When police found his body, faeces were still oozing out of his anus, faeces everywhere and multiple abrasions on every part of his body. All signs showed he was sexually molested before he was killed. Life sentence was imposed and the appellant appealed to the Supreme Court. Dismissing the appeal against both conviction and sentence the Supreme Court audibly felt and expressed that this was a worst case of wilful murder that ought to have attracted the maximum sentence of death.
    
47. In The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312 I sentenced the prisoners Tom Keroi Gurua, David Bawai and Joseph Nimagi to determinate terms of imprisonment according to the degree of their involvement and participation on a charge of wilful murder and after convicting them of murder. It was a case of robbery of a group of teachers who having a rosary night in front of the Statute of Mother Mary at Marian Hill Primary School at Wau that went bad when the prisoner David Bawai decided to abduct a teacher's daughter. When the teacher resisted and challenged them he was shot with home made gun at point blank. I sentenced Tom Gurua and David Bawai to fifty years and Joseph Nimagi who was not involved in the abduction attempt to twenty years imprisonment.
    
48. They appealed against my decision (see Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741) and the Supreme Court dismissing the appeal against both conviction and sentence shared the same sentiments that it was an appropriate case where I should have imposed life imprisonment on the two principal offenders. Great minds don't think alike all the time.
    
49. I have considered the gravity of the crime committed. This was a vicious and ruthless killing of a relative by the prisoners out of pure greed and selfishness over communal land that they did not want to share. In this millennium when every effort is made by all concerned to deal with conflicts between or amongst different factions of the society in a more amicable and humane way rather than resorting to violence, it is not doing any good to these concerted efforts when those who have been under Christian and government or modern influence continue to defy the law and turn the clock back to those primitive times when they knew nothing other than fight for survival in order to settle their differences. It makes a case far more serious when a highly educated and experienced man like Tony Emmanuel cannot see and adopt a better and non-violent and non-confrontational method of solving disputes than resorting to violence as they did on this case. It was within his ability to prevent it or to not let it happen the way it happened in the first place. But contrary to that, he barked the orders for them to fight.
    
50. Both Tony Emmanuel and Edward Yau played the role of counsellors and procurers of crime. Counsellors and procurers do not dirty their hands when they want to break the law. They rely on others to do the dirty work and they get the benefit. In this case as the leaders and elders of their clan, between them they commanded power and authority over their followers and when they gave orders, they must be obeyed. And that is what happened in this case.
    
51. In the case of counsellors and procurers it is justified that their sentences must be higher than those who actually wielded the axe or knife that kills because without their instructions, no crime would have been committed. When these people left their place to come to Lau hamlet preceded by garamut beat, it was a foregone conclusion that these people were coming for fight and to not make peace.
    
52. If all those people who were involved in this killing and named in the trial including Jonathan Yau were tried together, they should be getting either the same punishment as these two or less but definitely not more than these two as far as the law is concerned adopting the reasoning in Imiyo Wamela v The State [1982] PNGLR 269 where the appellant who counselled and procured the killing on an unborn child was convicted of wilful murder and sentenced accordingly as principal whereas the co-offender who actually killed the child after giving birth to the child by striking its head with a rock was convicted of infanticide and given lesser sentence. The co-offender was the appellant's step-daughter who was made pregnant by the appellant who instructed her to kill the child when she gave birth and she did as instructed.
    
53. Taking into account all those matters alluded to by the case authorities that I have cited pertaining to those cases where death penalties were imposed and the sentiments expressed by individual judges, my view is that death penalty is not appropriate in this case. I appreciate that this killing must be condemned in the strongest terms and the Court must be seen to be responding to the public outcry to stop senseless and unnecessary killings of fellow human beings by hanging those commit such crimes, the law on death penalty itself is far from certain. The mechanics of section 592 needs to be clearly spelled out and with that uncertainty abound, it is like sending a patient to a medical facility to get treatment for a particular ailment knowing full well at the outset that there is no stock of that particular ailment in that facility. Is that a satisfactory response to the community needs to severely punish law breakers with the penalty prescribed by law? In one sense, it could be an irresponsible act or decision to sentence someone to death when knowing too well that it is not clear as how, where and who will carry out that last act because the law has not spelled that out.
    
54. The critical issue before me now is whether the two prisoners be given the next highest penalty which is life imprisonment or determinate term of years? In deciding this question, I bear in mind two fundamental objectives of sentencing, namely, retribution and deterrence.
    
55. The importance of retribution here is the State's response to promoting the rule of law and upholding the Constitutional values of the sanctity of human life. The degree of violence that is so easily perpetrated or carried out by Papua New Guinean men callously and recklessly without the slightest provocation at all and terminating lives of others with total indifference as if they are killing insects or flies makes this country the most unsafe society in the world to live in. By the punishment it imposes, the Court must reverse this trend amongst our people through firm, decisive and strong sentences. While we cannot achieve this overnight, it is the court's Constitutional duty to undertake this task with commitment and future in mind. If we cannot change the world for this generation to enjoy, at least we lay the foundation for the future generations to live in a much better and safer place that they can be proud of.
    
56. This is undoubtedly a worst case of wilful murder where the prisoners and their family members set upon another clansmen in a planned attack that not only caused his death in a slow and calculated manner but they also ensured that he was denied medical attention so that he died following loss of blood after being in severe pain for hours. The medical report described his injuries as follows:
    

"...deep wound to left upper arm with fractured humerus with severed radial artery. There was also deep wound to the left posterior ankle with fractured fibula.

....the cause of death was hypovolemic shock due to blood loss."

57. According to this evidence, there was hope for survival of the deceased if medical help was given promptly but he would have been left with permanent disabilities in both left arm and left leg if medical science was able to save his day. But that was not to be so as we heard in the evidence and the inevitable resulted. And these two men are responsible for that death without any mitigation in their favour.
    
58. The other relevant objective is deterrence. This sentence must serve as a lesson not only to the prisoners but also to the public at large that senseless killings such as this must stop. People must learn to respect human lives and treat each other with respect and dignity. There is no need to kill one and other to solve problem between them. Two wrongs do not make a right, I keep saying except create more problems. It is not human, it is plain inhuman to inflict life-threatening injuries on someone you know out of greed and selfishness and then let him die when you know that he is going to die because only hope of getting medical help had been stopped.
    
59. Both prisoners are middle aged any terms of imprisonment at the top end of the scale alluded to in Manu Kovi v The State (supra) will mean their entire active lives to be served in prison. This is the determining factor between life imprisonment and determinate term of years. I have decided that determinate terms of years would be most appropriate sentences in this case bearing in mind that except for death sentence, all other sentences imposed by the court are subject to other laws that determine early conditional releases which includes life imprisonment.
    
60. The fact that he, Tony Emmanuel, gave orders for the attack on the deceased and his family and the fact that no genuine and sincere efforts were made to reconcile with the families and bring normalcy back to the community at Kavanumbo with all the life's experience and wisdom to his credit as a mature man who ought to have known better, I sentence Tony Emmanuel to forty years imprisonment in light labour.
    
61. With respect to Edward Yau, who is not as highly educated as Tony Emmanuel, an auxiliary policeman in the village, without a prior conviction but carries the same criminal culpability as Tony Emmanuel, I sentence him to thirty years imprisonment. His sentence will commence from the date of his recapture and detention. This is a kind of case that there is little that can be said in favour of the prisoners. Yes, they are both middle aged men who probably might die in jail but need the court trouble itself with these questions when these are matters that the prisoners are supposed to consider and weigh before embarking on such unlawful and heinous crimes? Given their advanced ages, whether it is 40-50 years sentence or life imprisonment, as long as they remain behind bars these sentences are like life imprisonment for them.
    
62. As I said a strong and deterrent sentence is needed to send a clear message to all persons that those who have no respect for the sanctity of human life will spend the rest of their prime lives in prison as the society does not need misfits like them.
    
63. Having said that I want to send a strong message to the Provincial Police Commander of East Sepik and all Policemen and Policewomen of the Province that full and concerted efforts must be made with cooperation from the community at Kawanumbo and Boiken area generally to apprehend and bring before the Court Edward Yau who escaped from custody while awaiting sentence, few of them whose names are now in the bench warrant list while awaiting trial and several were heavily implicated in the evidence of which Jonathan Yau is the star and lead actor of this case. Unless all these people are arrested and duly tried by the Court of law, they will continue to create tension, fear, instability and unsafe environment in the village, there will never be any peace and harmony in that village. All responsible citizens have a duty to create safe environment for everyone by ensuring that law abiding people go about their lawful business where ever they live without fear of being harassed or attacked any time of the day.
    
64. The order of the Court is that:
    
    1. Tony Emmanuel aka Emmanuel Kazira is sentenced to forty years imprisonment which sentence shall begin to run upon his completion of current sentences on existing warrants.
       
    2. Edward Yau aka Edward Yaulimbo is sentenced to thirty years which sentence shall commence from the time he is recaptured and returned to prison to serve this punishment.
       

Public Prosecutor: Lawyer for the State
Nerere Lawyers: Lawyer for the Prisoner