State v Toliu (No.3) [2014] PGNC 259; N5756 (9 September 2014)

N5756

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.417 OF 2011

THE STATE

-V-

MALARI TOLIU
(N0.3)
Kokopo: Lenalia, J
2014: 11th, 12th, 20th August,
2nd & 9th September

CRIMINAL LAW – Willful murder – Sentence after finding of guilty – Principles of sentencing on homicide cases – Section 299 of the Criminal Code

CRIMINAL LAW – Sentence – Sentencing tariffs – Deterrent sentences called for – Court's consideration aggravating circumstances far outweigh mitigating circumstances – What should be the appropriate penalty

CRIMINAL LAW – Sentencing tariffs – One of the worse type case – Deterrent sentences called for – Life imprisonment considered

Cases cited:

Goli Golu-v-The State [1979] PNGLR, 653
Ure Hane -v- The State [1984] PNGLR 105
Ombusu-v-The State [1996] PNGLR. 335
Manu Kovi-v-The State (2005) SC 789
State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997
Steven Loke Ume & Ors-vv-The State (2006) SC836
The State-v-Arua Maraga Hariki (2003) N2332
The State-v-Ben Simakot Simbu (N0.2) (2004) N2548
The State-v-Mark Poroli (2004) N2655
The State-v-Gregory Kiapkot & 4 Others (2012) N4381

Counsel:

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

September 9th 2014

1. LENALIA, J: The prisoner Malari Toliu, was found guilty on the charge of willful murder of his wife late Ebia Bungtabu. The crime you committed is contrary to s. 299 of the Criminal Code. After the prisoner was found guilty, he was asked to give evidence and call evidence if he wanted to.

2. After having him found guilty, the court gave him three choices to choose whether he wanted to give evidence, make a statement from the defendants' dock or to remain silent. He chose to remain silent and call no evidence. Mr. Kaluwin confirmed his client's position and the court asked if the prisoner wanted to say anything in his allocutus. He said he had nothing to say.

3. On this trial, two witnesses were called. The former Ward Councillor, Komet Eslly, now a Ward Committee of Marmar village, Bitapaka LLG gave evidence which corroborated other documentary evidence that you assaulted your wife on the night of the date you committed the assault on the victim. (Read the decision of this court dated 20th August 2014). Then Dr. Hilton Abraham of Nonga Base General Hospital was called to clarify to the court his findings on the report to the Coroner on the post mortem report. The doctor gave evidence on his findings on the body of the deceased.

Addresses on Sentence

4. Mr. Kaluwin of counsel for the prisoner addressed the court on the mitigations on behalf of his client. Counsel submitted that his client committed a serious crime punishable by death. He asked the court to consider the prisoner's expression of remorse and asked the court to consider the tariffs of sentencing guidelines set out in Manu Kovi v The State (2005) SC789. Counsel submitted that, the court should consider the pre-sentence report which suggests that the killing on the instant case was a payback killing. Counsel acknowledged the fact that the killing on this case was serious and the court should sentence the offender to an appropriate term of imprisonment but that the case does not warrant imposition of the death penalty.

5. For the State, Mr. Rangan made submission on the seriousness of the killing of an unarmed victim. He raised the issue of the prisoner taking the law into his own hands rather than taking the matter into the police if late Embia had committed any trouble. Counsel submitted that this was a vicious killing and the prisoner's case should fall near or on the highest category of the sentencing tariff enunciated by various Supreme Court decisions as in Manu Kovi v The State (supra). Counsel referred to a few National Court cases including that in The State v Gregory Kiapkot & 4 Others (2012) N4381 and other cases I shall refer to later.

Application of Law

6. The maximum penalty for the offence of wilful murder is death. I quote s.299 (1) and (2) of the Criminal Code. It says:

"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."

7. The death penalty is imposed where it is appropriate to impose if a court finds that, the circumstance of how such crime was committed warrants such penalty. On this case, your case went through a trial envisage by the right to trial pursuant to s.37 of the Constitution. The fact that you were found guilty or that you did not give evidence or call any witness does not mean it may attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or a shorter term taking into account the relevant factors and circumstances recognized in law such as the factors that mitigate and those that aggravate the circumstances with which the crime was committed.

8. On this case, the proper approach to take and consider on sentence is the court must have regard to all the aggregate effect of all relevant considerations and then determine an appropriate penalty. The aggregate effect come from several considerations which the court must consider by carefully examining the circumstances of each case as to how the death on this case was caused: Manu Kovi v The State (2005) SC789

9. The court's observation of the medical report on the Coroner's report and the evidence from, Mr. Eslly Komet on his observation of seeing the accused wife the next morning. In his evidence he observed that the victim was brutally attacked as there were serious suffered by late Bungtabu. According to Eslly, he said on oath, when he saw the wounds, they looked like fresh ones and the cuts may have caused by a sharp instrument like a knife. In case of the doctor's evidence, it was quite clear that, the victim's injuries were not simple wounds from blunt objects. To the doctor, the wounds were sharp as compared to someone applying a blunt object to hit the deceased and he concluded that, it may have been that a sharp instrument such as a knife had been applied to cut the victim. In chief and cross-examination he ruled out the possibility of mere punches or the victim being hit with a blunt object.

10. The principle of sentencing in wilful murder cases set by the Supreme Court case of Manu Kovi v The State (2005) SC 789 is the maximum penalty should be reserved for the most serious offences under consideration. What that means is that, the maximum penalty should only be imposed in those cases where they are categorized as the "worse type case" encountered in practice. (See also: Goli Golu v The State [1979] PNGLR, 653, Ure Hane v The State [1984] PNGLR 105).

11. Today, to Malari, you must understand that you can be sentenced to death for killing your wife. The case of Steven Loke Ume & Ors v The State (2006) SC836, establishes that, the maximum penalty is not automatic as the Court or a sentencing Judge may exercise his or her sentencing discretion pursuant to s.19 of the Criminal Code.

12. By authority of the above cases, the court must consider factors such as the nature and frequency of the attack. The court must consider whether were the injuries caused by a direct hit or did the victim fall on to any objects by heavy landing or not. I must also consider whether the injuries caused were caused by the prisoner being bare handed or did he use a weapon.

13. As the evidence on trial of the instant case showed, the prisoner used either a small kitchen knife or bush knife for that matter to inflict serious wounds that were found by the doctor as witnessed by Elder Eslly. On this case, I consider the fact that, the victim did not fall on anything. The injuries she received were the direct result of the wounds intentionally inflicted on her body by the prisoner.

14. The prisoner's case may be similar to the case of The State v Peter Wirundi (2010) N3994. In that case, the prisoner was charged with the wilful murder of one of his wives. Early in the month of July 2004, the accused went to Lae and returned on 11th July the same year. Upon arriving in Mt. Hagen at about 04:00 o'clock in the morning, he found the deceased in town. After they talked, they jumped on a PMV vehicle to go to the village and they were dropped off at Wanka village, Ogulbeng.

15. On their way back to the village, an argument developed between the prisoner and the deceased. He accused her of having extra-marital affairs with other men. He punched the deceased and she fell to the ground.

16. The deceased then took out a knife and swung it at the prisoner. The knife cut the accused's leg. There was a struggle whereby the offender overpowered the victim and took the knife off her. With this knife, the Prisoner cut the victim on her neck, right chest and the abdomen. One cut penetrated the right lung. Other cuts were also inflicted on her back which affected her spinal cord. The cuts were very severe that the victim died as a result of those injuries. David, J sentenced the offender to 30 years imprisonment.

17. The death penalty was imposed in The State v Ben Simakot Simbu (N0.2) (2004) N2548. That was a double murder where, Kandakasi,J sentenced the offender to death of a mother and her young child. The accused in the above case went to the victims block on 19 July 2002 in Vanimo, Sandaun Province. He requested to get a live chicken on credit basis so he could pay for it later whenever he got the money. After the victim refused the third time, the accused grabbed her and forced her down to the ground and forcefully raped her. After raping her, he got a piece of iron and hit her across her head causing instant death. He used the same iron bar to kill the innocent young child. The trial judge found that the killing in the above case was in the worse type category.

18. In The State-v-Arua Maraga Hariki (2003) N2332 the court imposed the death penalty on an offender who killed two young men with whom he had been drinking with during the night the offences were committed. The prisoner strangled the two deceased by their necks until they died. That case was a double murder.

19. According to the Supreme Court case of Steven Loke Ume & Ors v The State (2006) SC836, the death penalty is not mandatory, but is the maximum penalty that can be imposed. The Court has considerable discretion whether or not to impose the maximum penalty when reading s.229 (2) in conjunction with s.19 (1)(aa) of the Criminal Code. On what may amount to extenuating circumstances, the Court in the above case said:

"As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent 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."

20. Out of the above considerations, two relevant considerations may be considered in favour of the prisoner on the instant case. First, the prisoner's medical condition as having psychopathic personality.

21. The medical report conducted by the doctor on the prisoner on 22 August 2012 seems to suggest that the prisoner was right in his mind. Secondly, there may have been some de-facto provocation in the non legal sense. All these mitigation would operate in favour of the prisoner. However, apart from those two factors, I am of the view that, no other extenuating circumstances may be considered in favour of the prisoner.

22. The maximum penalty of death may be considered and imposed in cases where it is appropriate to impose given the circumstances of facts and evidence in any particular case under consideration. Your case went by trial as guaranteed by the Constitution. Like in your case where you had been through a trial as envisage by the right to trial and found guilty of willful murder it does not mean it may attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, among others, aggravating and mitigating circumstances.

23. Homicide crimes like other crimes such as rape or armed robbery have always been serious crimes of violence and the gravity of the circumstances of the killing in any particular case may outweigh ordinary or even special mitigating circumstances. On the instant case, I consider the degree of force used against the victim in the manner in which the prisoner repeatedly applied a sharp instrument against the unarmed victim Ebia. The court found from the post mortem report that there were knife wounds on the body of late Bungtabu. The attack was far above the viciousness with which the attack was carried out on your own wife.

24. The Court must raise this serious concern about the use of offensive weapons. According to the post mortem report the body of late Ebia was dotted with wounds on his left arm there were four (4) separate wounds. There were other findings like, mashed chest tissues and fracture on nasal region and of course there were wounds on her left and right thighs. There was one on her right hand and the abdomen. To be exact, the doctor found there were nine (9) wounds with the following description:

25. In Tony Imunu Api v The State (29.08.01) SC684 the Supreme Court comprising of late Justice Los and retired Judge, Justice Sevua and the current serving Judge, Justice Kandakasi, dismissed the appeal against life imprisonment. The Court in that case expressed some concern that because the case involved a bizarre killing, and the death penalty could have been imposed. The Supreme Court though not a prima trial Court expressed an orbiter dictum over the consideration that could have been given when the National Court sentenced the appellant. The Court there said:

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

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

26. I adopt the above sentiments and say that, the killing on this case was a blatant and complete disregard for the sanctity of life of the late Ebia. The prisoner ended her life prematurely. As on this case, this court cannot see any motives for killing the victim. This primary Court being the National Court cannot ignore the concerns of the community at large. I agree with the orbiter expressed above that it is timely for the National Court to seriously consider paying some attention to serious wilful murder cases, and where appropriate, impose the death penalty.

27. Another relevant consideration is the community's concern on this habit of unlawfully killing and taking peoples' life without consideration of the community's concern and the law and order quest for peace and good order in each community. There is concern by mothers over the issue of violence against women and children. Men are killing their wives and vise versa. Fathers are committing incest with their daughters and the general trend of sexual violence is very prevalent.

28. The evidence tendered show that, you had been manufacturing home-brew and sell it to people. It is illegal to carry out manufacture of anything in terms of liquor for sale when you are not a registered manufacturer or the law does not recognize someone unless they have been issued with a licence. In your case, there is no evidence that you had a licence to sell any form of liquor or even beer.

29. Various National Court decisions and Supreme Court on appeal decisions,Judges have expressed concern about the crimes of homicide cases in various ways. 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.

30. As a warning against merciless killings occurring everywhere in the country sentences for homicide crimes must be increased. That was a case of murder. I endorse and adopt what His Honour Justice Cannings; said in The State v Charles Langu (No.2) (26.8.04) N2652 where His Honour said at 5 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 emphasised 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."

31. I have cited the above cases to illustrate the seriousness of the crime of murder and wilful murder and the sentencing trends 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 ought to be increased in the hope to deter this heinous crime.

32. 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. Let me say that, the basic principle is that the sanctity and value of a human life is far more precious and valuable than anything else and as such must be given prominence by the Courts. That is why the Parliament fixed the maximum penalty of death.

33. Every human soul has a right to the protection of life pursuant to sections 35 & 37 of the Constitution. As such nobody must deprive anyone of his or her life because it is protected by law in accordance with the Constitution. The prisoners mercilessly slaughtered the victim without fear of the law. He used an offensive weapon to attack the victim leaving her with serious injuries.

34. 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 woman. She did not expect to die like that on that night. You brutally murdered her.

35. The life of the victim in this case has now been lost for good. She was entitled to the protection of the law envisaged by s.37 of the Constitution. No money or even where the prisoner had to express any remorse, such matters would assist to restore, revive or resurrect the life of late Bungtabu. Once such life was lost, it is lost forever. That is why the parliament decided that the penalty for the crime of wilful murder should be death.

36. Malari Toliu, you must remember and understand the fact that you have taken the life of Ebia Bungtabu away prematurely. She was not your drinking mate. She was you wife. I consider the principle stated by the Supreme Court in the manslaughter case of Kesino Apo v The State [1988] PNGLR 188 where the Court considered that, the loss of a loved one is a consideration on sentence. The victim in this case was not only a helper but she was the wife of the prisoner. She was the only one with whom you enjoyed your intimacy. You have lost her forever now. This may mean that the court may consider a term lower than the normal sentencing range or even the maximum penalty of death.

37. The Constitution, states that no person has the right to end another person's life unless it is under the circumstances or exceptions set out under sub paragraphs (a) – (c). The Constitution is the Supreme Law of this country and it prohibits unlawful killing of a human being. There is no excuse for any killing that happens outside what is defined in s.35(1)(a)(b) and (c) of the Constitution.

38. The killing in the present case was heinous, senseless, brutal, and barbaric and as I have already said was cold blood killing and was deliberately planned. There was a blatant disregard for the sanctity of human life. The penalty under s.299 (1) of the Criminal Code states that a person who unlawfully kills another person, intending to cause his death is guilty of wilful murder. This provision is made subject to other succeeding provisions. Section 299(1) prescribes the offence of wilful murder while Subsection (2) creates the penalty.

39. The court found from all evidence that there was deliberate intention by the prisoner to harm the deceased. The prisoner took advantage of an argument he had with the three persons whom he drank with that night and after he had chased them away, he took whatever steps he took to mercilessly and brutally cut the victim on her body. You did not take any steps to take the victim to the hospital. After you wounded her, according to Ward Councillor Eslly Komet, after you had inflicted serious wounds on the victim, you fled the scene and your house. You were arrested sometime later.

40. Your case is aggravated by the application of offensive weapon being a bush-knife or kitchen knife. The crime of willful murder attracts the maximum of death penalty. Your case involved a deliberate killing. You intended to kill late Ebia Bungtabu.

41. On this case, I am of the view that, the aggravations outweigh any mitigations of this case. I consider imposing a penalty in the range of category 4 of the sentencing tariffs suggested in Manu Kovi case. The prisoner should be sentence to a long term of years. You have a previous conviction for killing your wife. According to the principles and considerations on sentence as to what is the worst type case, the killing on this case false into the worst type killing as in the case of Ure Hane v The State (supra), and the maximum penalty of death may be imposed. This is your second conviction for wilful murder. You had murdered your first wife.

42. I have also considered counsels' submissions on sentence. You did not say anything to show remorse. I consider that this case warrants imposition of the death penalty or may be a long term of imprisonment. Having considered all aggravations and mitigating factors, I conclude that, life imprisonment should be imposed. The prisoner is sentenced to life imprisonment.
___________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.