State v Wafi (No. 2) [2013] PGNC 361; N5342 (7 August 2013)

N5342

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.998 OF 2011

THE STATE

V

WILLIE WAFI
(NO. 2)

Lae: Gabi, J
2013: 07 August

CRIMINAL LAW — sentence after trial — Criminal Code s 299 — wilful murder — innocent victim 46-year-old woman — severe multiple head injuries inflicted by a bush knife — brain tissue exposed — two fingers amputated — retaliatory killing for rumoured killing of prisoner's son by victim's son — prisoner's previous good character, long role as community leader — premeditated killing, strong desire to kill — life imprisonment.

Facts

The prisoner was found guilty after a trial, of wilful murder. He had heard and believed a rumour of the identity of the man who had killed his son. There was no credible evidence to support the rumour. He went to the house of that man and killed the man's mother by inflicting vicious cuts to her head with a metre long bush knife exposing the brain. The prisoner, aged about 60 years, has two wives, two children from each wife, educated to grade 12 and was a community leader and chairman of the Law and Order Committee for 23 years.

Held

1. Remorse expressed after conviction is normally not genuine, at [17];

2. That the prisoner was acting on a rumour that his son was killed by the victim's son is not a mitigating factor, such behaviour should be stopped and not tolerated, at [18];

3. The aggravating factors include that the prisoner took the law into his own hands even after the police had assisted the family by transporting the deceased and told his "house line" to await the outcome of police investigation, at [19];

4. The killing was premeditated and accompanied by a strong desire to kill, a revenge killing and the use of violence to resolve disputes must be arrested at all cost, at [21];

5. Prisoner sentenced to life imprisonment.

Cases Cited
Alois Peter IboroKovei v. TheState (2001) SC676
GoliGolu v. The State [1979] PNGLR 653
John ElipaKalabus v. The State [1988] PNGLR 193
Manu Kovi v. The State (2005) SC789
Mary Bomai Michael v. The State (2004) SC737
Steven Loke Ume &Ors v. The State (2006) SC836
The State v. George Kiapkot(2011) N4381
The State v. Mark Bongede(2012) N4683
The State v. Seth UjanTalil(2010) N4159
The State v. SotiMesuno(2012) N4701
UreHane v. The State [1984] PNGLR 105

Counsel

C. Sopa, for the State
C. Koi, for the Prisoner

SENTENCE

7th August, 2013

1. GABI, J: Introduction: The prisoner has been found guilty of wilful murder contrary to s. 299 of the Criminal Code. The maximum penalty for the offence is death.

Facts

2. It was alleged that on 16th May 2010, at about 3.40 am, the prisoner and a large group of men, went to the Dugumari house at Raicoast Compound and surrounded it seeking revenge for the death of the prisoner's son, Andy Marus.

3. Wilma Dugumari, the forty-six (46) year old mother of the household, was approached by the group, and one of them asked where her own son was. Before she could answer, the prisoner swung a bush-knife at her head injuring her, and then did so again, this time chopping her fingers off. The prisoner pushed her to the ground and put his foot on her neck, holding her down.

4. Then an unknown offender carrying a home-made gun entered the house where Sharon Dugumari was with her baby. He told her to hurry up and leave. Amongst the group, there was talk about burning the house and its contents.

5. As Sharon Dugumari was leaving the house, carrying her baby, she saw and recognised the prisoner. She said to him "Hey, mi save long yu, ya!" He immediately swung his bush-knife at her. She twisted to avoid the bush-knife chopping her baby and lifted her left hand to shield the baby. His blow severed her left forearm, leaving it hanging by the skin. She ran into the nearby tall grass and lay on top of her baby, and the prisoner chopped her on the head, fracturing her skull, and on the back. He left her there for dead.

6. She eventually gathered her strength to stand up and seek help. She saw her house had been burnt to the ground. She got some first aid from a community member at about 5.00 am. She was then taken to hospital where her injuries were treated and recorded.

7. Wilma Dugumari's body was taken to the hospital. A post mortem was conducted and it was discovered that she died from severe multiple head injuries. In particular, the doctor noted a 17 cm long and 4 cm deep cut from the nose through the face to the right jawbone, and a 21 cm long and 4 cm deep cut to the rear of the skull, exposing brain tissue. Additionally, the deceased's right hand had two fingers amputated.

Allocutus

8. The prisoner was given an opportunity to address the Court on sentence. He said he is a first time offender, that he was sorry to the Court and to the victim's family for what he and his family had done to them, that the offence would not have taken place if Shane Dugumari had not murdered his son Andy Marus on 15th May 2010, that he invested heavily in the education of his son Andy Marus, who was doing grade 11 at Bumayong Secondary School and had a bright future at the time of his death, that he is a community leader and Chairman of the Law and Order Committee for the last twenty-three (23) years, that he is almost sixty (60) years of age and that he did not create the problem but only retaliated after his son was killed by Shane Dugumari, who has not been charged for the killing of his son Andy Marus. Finally, he asked the Court for mercy and a lenient sentence.

Antecedent Report

9. I am informed and ascertain from the antecedent report that the prisoner has no prior convictions.

Personal particulars

10. The prisoner is fifty-eight (58) years of age and comes from Harua village, Yanggoru District, East Sepik Province. He has lived at Busu Compound, Lae, for the past twenty-five (25) years. The prisoner has two (2) wives and has two children each from each wife. He is educated up to grade 12. He is a member of the Lutheran Church and was self employed at the time of the offence.He appears to be in good health.

The Law

11. As indicated earlier, the maximum penalty for wilful murder is death. However, a person convicted of wilful murder may be sentenced to life imprisonment or for a shorter term (see s. 19 (1) (aa) of the Criminal Code; Steven Loke Ume &Ors vs. The State(2006) SC836;The State vs. George Kiapkot (2011) N4381).The maximum penalty is reserved for the "worst type" or "worst category" of the offence under consideration: GoliGolu vs. The State[1979] PNGLR 653;UreHane vs. The State[1984] PNGLR 105; Alois Peter Iboro Kovei vs. The State (2001) SC676.I accept the submission by counsel for the State that this offending constitutes a gravely serious case of wilful murder.

12. In Ure Hane vs. The State (supra), Bredmeyer J listed eight categories of wilful murders as the "worst" type at p. 107-109. They include:

(1) 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 policemen or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

(4) A wilful murder of a person in police or court custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(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 National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.P's.

13. In Manu Kovi vs. The State (2005) SC789, the Supreme Court provided further guidance as to how persons convicted of wilful murder might be sentenced.It was suggested that life imprisonment ought to be considered appropriate following a trial or plea where there were special aggravating features, and the mitigating features were reduced in weight or rendered insignificant by the gravity of the offence, by factors such as:

(i) A brutal killing in cold blood;

(ii) Killing of an innocent, defenceless or harmless person;

(iii) Dangerous or offensive weapons used;

(iv) Killing accompanied by another serious offence;

(v) Victim young or old;

(vi) The crime was pre-planned and pre-meditated;

(vii) There was strong desire to kill.

14. In Steven Loke Ume &Ors vs. The State (2006) SC836, a group of men had killed an innocent woman as a payback killing. She was abducted, raped and viciously murdered. The prisoners appealed against the death sentence imposed upon them. The Supreme Court found that the sentencing Judge had erred in considering himself to be circumscribed by Parliament's intention that death penalty be imposed, and in shutting his mind to any mitigating factors. The appeal was upheld and life sentence was substituted.The Court restated the principle that the maximum penalty, being the death penalty, is to be reserved for the worst examples of wilful murder. It said:

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

41. The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

42. 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 forpurpose 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.

43. As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender; guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.

44. 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 ElipaKalabus vs. The State [1988] PNGLR 193."

15. The Supreme Court went further to say:

"...the Parliament may wish to consider prescribing the types of aggravating circumstances in willful murder cases which warrant the death penalty. It may also consider prescribing mitigating circumstances or perhaps re-introducing the "extenuating circumstances" provision. In the absence of such legislation, we would suggest the death penalty may be considered appropriate in the following types of cases:-

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

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

3. Killing of a leader in government or the community, for political reasons.

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

5. Killing for hire.

6. Killing of two or more persons in the single act or series of acts.

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

8. The prisoner has prior conviction(s) for murder offences."

16. Counsel for the prisoner submits that this is not the worst case of wilful murder; there are more gruesome and horrendous killings where shorter terms of sentence have been imposed and referred me to The State vs. SotiMesuno(2012) N4701,The State vs. Mark Bongede(2012) N4683,The State vs. Seth UjanTalil(2010) N4159. Secondly, this case falls within the upper end of the second category and lower end of the third category of Manu Kovi vs. The State (supra).Thirdly, there are no special aggravating factors in the commission of the offence. Finally, there was de facto provocation in that the prisoner's son had allegedly been murdered earlier on in the evening by Shane Dugumari. A de facto provocation is an extenuating circumstance: StevenLoke Ume &Ors vs. The State (supra).

17. Matters in mitigation that weigh in favour of the prisoner are the prisoner's good character and lack of criminal antecedents and his role as a community leader and Chairman of Law and Order Committee in Lae. The prisoner expressed remorse but I do not consider it as genuine. I hold the view that remorse expressed after conviction is normally not genuine. In this case, the prisoner had always denied the charge and only admitted the offence after the Court found him guilty.

18. It was rumoured that the prisoner's son was killed by Shane Dugumari and whilst there was no independent and credible evidence to link Shane Dugumari to the killing, the prisoner believed the rumour and took the law into his own hands.Counsel for the prisoner argues that this was a factor in mitigation. I do not subscribe to that view. I believe such behaviour or conduct must be stopped and not tolerated in the future.

19. The aggravating features of the offending are as follows: (i) the prisoner was so enraged by the killing of his son and gathered an armed group of men to take the law into his own hands, even after the police had assisted the family transporting the deceased and told his "house line" to await the outcome of police investigation; (ii) he himself was armed with a deadly weapon, a metre – long bush knife; (iii) he and his group of men terrorised helpless women in a familyhome in the middle of the night; (iv) he took out his rage on an innocent and unarmed grandmother, chopping her with his bush knife not once but a number of times; and (v) the killing was accompanied by other serious offending. Having killed Wilma Dugumari, he went on to attack the deceased's daughter Sharon Dugumari, who was coming down from the house carrying an infant in her arms. She raised her arm to protect her face and her baby, and he struck her with his bush knife with such force that he permanently severed her left hand below the elbow. This happened whilst other members of the group he led set fire to the house and burnt it to the ground.

20. Commenting on the community's concerns about crimes in Mary Bomai Michael vs. The State (2004) SC737, the Supreme Court expressed the views, which I also endorse:

"The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands; however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community's concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as pay back. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, willful murder and armed robbery."

21. There is no doubt in my mind that the killing was premeditated and accompanied by a strong desire to kill. This was a revenge killing. The resort to the use of violence to resolve disputes is on the rise in the country and must be arrested at all cost. Violence against women generally, and the scape-goating and violent killing of innocent and helpless women by violent men in particular, is sadly all too prevalent in Papua New Guinea. The prevalence of this kind of offending, which is an aggravating feature of the offence, calls for a punitive and deterrent sentence. I am mindful of the fact that the prosecution has not asked for the death penalty.

22. This was a bad revenge killing of an innocent and harmless woman who had done no wrong. The multiplicity of injuries shows that it was a violent and vicious attack and a horrendous death. These factors clearly call for stern punishment. The weight to be attached to any extenuating circumstances or mitigating factors is significantly reduced by the gravity of the offence. I sentence the prisoner to life imprisonment.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner