N5579

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 326 OF 2012

THE STATE

V

DANIEL JAVOPA

Popondetta: Toliken, AJ.
2013: 26th September
2014: 17th April

CRIMINAL LAW – Sentence – Double Wilful Murder of mother and child – Guilty plea – Worst case - No exceptional or especially aggravating factors – Life sentences – To be served concurrently - Criminal Code Act Ch. 299

Cases Cited:
Papua New Guinea Cases

Steven Loke Ume v The State (2006) SC 836
Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)
The State v State v Ombusu (Unreported and Unnumbered National Court Judgment (17.02.95
Ombusu v The State [1996] PNGLR 335
The State v Ben Simakot Simbu (N0.2) (2004) N2548
The State v Mark Poroli (2004) N2655
The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997): 
John Elipa Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State (2005) SC 789 
Regina v Peter Ivoro [1971-72] PNGLR 374
The State v Mongi (2007) N3259 
The State-v-Arua Maraga Hariki (2003) N2332
Arua Maraga Hariki v The State, SCR 12 of 2013 (unnumbered and unreported judgment dated 29th August 2007) 
The State v Kiapkot (2011) N4381 
The State-v-Kenny Wesley CR. No. 293 of 2010 (Unreported Judgment of dated 1.5.12.) 
The State v Amos (No.3) (2012) N5073 
The State-v-Seth Ujan Talil (17.11.2010) N4159
Alois Erebebe & Anor v The State (2013) SC 1228
Tony Imunu Api-v-The State (29.08.01) SC684
The State v Peter Wirundi (2010) N3994, The State v Sapu (2012) N4533 and The State v Tayamina (No.3) (2013) N5288 

Overseas cases:

Profitt v Florida 428 US 249 
Sandra Lockett v Ohio [1978] USSC 154

Counsel:

J.Waine, for the State
J. Mesa, for the prisoner

JUDGMENT ON SENTENCE

17th April, 2014

1.	TOLIKEN, AJ: On 12th September 2013 the prisoner pleaded guilty to an indictment charging him with two counts of wilfully murder in contravention of Section 299 of the Criminal Code Act Ch. 262.

2. The indictment charged the prisoner as follows:

COUNT ONE:

“DANIEL JAVOPA of Kararat Village, Oro Bay, Oro Province stands charged that on the 17th of December 2011, t Oro Bay, in Papua New Guinea he wilfully murdered JUNIOR ALESTER SORARI.

COUNT TWO: 

AND ALSO the said DANIEL JAVOPA of Kararata Village, Oro Bay, Oro Province stands charged that on the 17th of December 2011, at Oro Bay, in Papua New Guinea, he wilfully murdered VICTORIA SORARI.

THE FACTS

3. The brief facts for the purpose of arraignment are that up to the 17th of December 2011 the prisoner had been living in a de facto relationship with one Victoria Sorari (deceased victim) and her 7 year old son Junior Alister Sorari (deceased victim) at Kararata Village, Oro Bay, Northern Province. On the morning of the 17th of December 2011 the prisoner’s sister and Victoria Soari accompanied the prisoner to weed the prisoner’s garden at his request. Victoria Sorari took her son Alister along. After weeding the garden for some time the prisoner asked them to go further inland through scrubs and tall grass. When they came to a clearing where a fallen tree was the prisoner swung his bush knife at Victoria who was carrying her son Alister. In the process he chopped the child firstly on the right base of his skull. A second chop caught the child on the neck. The child sustained a fractured skull and a deep laceration to the neck as a result.

4. The prisoner then chopped Victoria on the left side of her neck severing the spinal cord and vertebrae leaving the head hanging only by the skin. Victoria further sustained a fracture to her left forearm (ulna). Both victims died from heavy loss of blood.
 
THE SENTENCING ISSUE(S)

5. The State had asked for the maximum penalty – death. Hence the issues for me to determine are –

1.	Is this a worst instance of wilful murder?
2.	If it is, is it deserving of the death penalty or a lesser penalty?

THE LAW

The Offence

6. The offence of wilful murder is provided by Section 299 of the Code in the following terms:

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.

Sentencing Principles and Guidelines

7. The death penalty is not mandatory for while Parliament legislated for the ultimate penalty, it did not remove the sentencing court’s discretion under Section 19 (1)(aa) of the Code to impose a life sentence or a term of years depending on the circumstances of each case. Hence the death penalty remains merely the maximum. (Steven Loke Ume v The State (2006) SC 836)

8. What is, however, clear and implicit from Parliament’s prescription of the death penalty is that it views the wilful taking of life with such gravity so that where appropriate the death sentence must be imposed subject of course to the Court’s discretion. But under what circumstances should the death penalty be imposed and what should the court consider to impose it?

9. As is trite law the maximum penalty in any given case is always reserved for the very worst instance of the offence under inquiry. No two cases are identical hence, each case is to be treated on its own merits or peculiar facts. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105)

10. For the offence of wilful murder, which prior to the 1991 re-introduction of the death penalty carried the maximum of life imprisonment, the Supreme Court in Ure Hane v The State (per Bredmeyer J. (supra)) considered the following circumstance as warranting the imposition of the then maximum –

(a) 	any murder done in the course or furtherance of theft;
(b) 	any murder by shooting or by causing an explosion;
(c) 	any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody;
(d) 	any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting;
(e) 	in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prison officer so acting.

11. In Steven Loke Ume v The State (2006) (supra) (Kapi CJ, Injia DCJ (as he then was), Hinchliffe, Davani JJ.) had the occasion to expand on the principles laid in Ure Hane and provided further guidance on what a sentencing court can take into account when considering whether or not to impose the death penalty. It said (and perhaps it is appropriate if what it said could be cited verbatim here) that –

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 for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree 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. 

12. The court said that the distinction between mitigating factors and extenuating circumstances must be maintained in murder cases despite them having the desired effect of reducing punishment. This is because the weight to be attached to them may vary. Ultimately the gravity of the offence, considered in light of the relevant aggravating factors, may very well diminish the weight given to mitigating factors and extenuating circumstances. In some cases these maybe rendered completely irrelevant. (John Elipa Kalabus v The State [1988] PNGLR 193)

13. Reiterating that the death penalty is reserved for the worst types of wilful murder and that each case ought to be treated on its own facts, the court said that there are many considerations to be taken into account when considering whether it is appropriate to impose the death penalty and that it is impossible to provide an exhaustive list. Some relevant considerations, however, would include the position of the victim, the capacity of the offender, the reasons and motive of the crime, how it was carried out and any post facto expression of remorse. And the sentencing court should not restrict itself to the factual circumstances of the case but consider relevant factors such as community concerns about the prevalence of violent crimes and the need for strong deterrent and punitive sentences, public or private moral concerns and relevant customary beliefs which may have had some bearing on the killing and the views of victim’s relatives. 

14. The views of victim’s relatives can be vouched for by means of a Victim Impact Statement as provided for by Section 21A of the Code whilst community concerns may be derived from objective views expressed by various forums such as the Parliament, the media. Public forums and relevant literature, the court said.

15. One other important pronouncement of the Supreme Court here was its adoption of “extenuating circumstances” as relevant considerations despite the fact that the current provision for wilful murder does not mandate it as previously was the case (s 305, Criminal Code Amendment Ordinance (Amendment No. 4 of 1907) amended by Ordinance No.69 of 1965) until the death penalty and “extenuating circumstances” were repealed by the Criminal Code Act 1974 (Act No. 28 of 1994. (See what the court said as constituting “extenuating circumstances” above and see the full judgment for its discussion on the genesis of the concept.) And this leads us to the question: which types of cases should attract the death penalty?

16. To decide which types of cases should warrant the death penalty the Supreme Court embarked upon a comprehensive survey of cases from jurisdictions whose legal systems are similar to ours in which the death penalty is still applicable such as the United States and those jurisdictions in which the penalty had since been abolished such as Australia and the United Kingdom. It also considered what it had said in Manu Kovi v The State (2005) SC 789 (Injia DCJ (as he then was), Lenalia, Lay JJ.) It then said:

66. It is difficult to lay down any universal principle of general  application as to the kind of intentional killing which may warrant the death penalty. Each case will depend on its own facts. In general, considering that the death penalty is “qualitively different” from any other penalties for willful murder and that in our Criminal Code the death penalty is limited to only three crimes considered to be the most serious crimes, we consider the death penalty may be considered appropriate in a willful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenseless or harmless person, or a person in authority or position of responsibility in the 	community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, “consc[ience]less”, “senseless”, “pitiless” and “unnecessarily torturous”: see Profitt v Florida 428 US 249 at 255. The crime is committed “by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning”. Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances.

17. The court then went on to lay down what it considered as appropriate circumstances where the death penalty may be (not must be) considered in the absence of legislative prescription of what must constitute aggravating and mitigating factors and extenuating circumstances. Those circumstances are:

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. 
 
18. A year earlier in 2005, in Manu Kovi v The State (supra) (Injia DCJ. (as he then was), Lenalia, Lay JJ.), the Supreme Court had laid down sentencing tariffs for homicide offences under four broad categories of circumstances for each offence beginning with the less serious to the worst. Under Category 4 (worst cases) for wilful murder, whether on plea or after trial, the death penalty may be imposed if there are special aggravating, absence of extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the offence.

19. In the absence of any statutory guidelines Ure Hane, Steven Loke Ume and Manu Kovi now set the benchmark as to the relevant considerations a sentencing court must take into account when deciding whether or not a case warrants the death penalty. But as the court said those considerations are not exhaustive. Notwithstanding that, the sentencing court retains the unfettered discretion to decide - guided of course by good and settled principles - whether or not to impose the death penalty in any given case. 

Sentencing Trend

20. The death penalty has been imposed in a number of cases in this jurisdiction since the re-imposition of the penalty beginning with the case of The State v Ombusu (Unreported and Unnumbered National Court Judgment (17.02.95)) where Doherty J. sentenced the prisoner to death after finding him guilty of wilful murder and rape. The conviction was, however, quashed on appeal by the Supreme on procedural errors which resulted in miscarriage of justice. (Ombusu v The State [1996] PNGLR 335)

21. In The State v Ben Simakot Simbu (N0.2) (2004) N2548, Kandakasi J. sentenced the prisoner to death for a double murder of a mother and her young child. The prisoner had gone to the victims block wanting to get a live chicken on credit but his request was refused three times by the woman. He then grabbed her and forced her down to the ground and raped her. After that he got a piece of iron hit her across her head. The woman died instantly. Using the same piece of iron he turned to the child and hit the child on the head. The child died instantly as well. The court found this to be a worst case and sentenced the prisoner to death.

22. In The State v Mark Poroli (2004) N2655 the prisoner pleaded guilty to killing an on-duty policeman in Koroba in Southern Highlands. Prior to the killing there was a shoot-out between the police and people who had gathered at an election rally in 2002 after which a relative of the prisoner was shot dead but not by the police. As the police contingent was returning to Tari the tyres of their vehicle got punctured and they fled on foot. Some of them including the victim spent the night in the bushes. The next morning the prisoner and his relatives caught the victim. They took him to a little cliff on a hill where they asked a pastor to offer a prayer for the victim. They then asked the victim to say his last prayer. The prisoner then shot the victim on the forehead from a distance of less than a meter instantly killing him. This was considered a worst case and the prisoner was sentenced to death.

23. The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997): The facts at the trial were that on 2 December 1995, there was a confrontation amongst the village people at Pagalau Village in which one Patrick Reu was killed. A Francis Reu, the victim’s son, was suspected of killing him by Patrick’s people so they decided to avenge his death. The prisoners were amongst a group of nine (9) men who set out to search for Francis. They went to his house but did not find him there. Instead they found his mother there. They asked her where Francis was. When she could not tell them, they abducted her and “brutally assaulted her by raping her and then … chopped her so viciously that she died.” Woods J. found the killing to be of the worst type of wilful murder and sentenced each appellant to death.

24. The Supreme Court, however, quashed the sentences on appeal and substituted life sentences instead. (Steven Loke Ume v The State (supra). It found that the trial judge proceeded on the misconception that the imposition of the death penalty was mandatory; that he erred in holding that there were no mitigating factors when mitigating factors would have been pointed out by defence counsel during submissions; the involvement of the group number nine (9) and infliction of a number of injuries and evidence of rape of the victim were not considered carefully in order to ascertain the extent of the appellant’s involvement; the trial judge failed to consider the appellant’s personal circumstances including their “antecedents , character ,history of propensity towards violence (if any), their level of sophistication, their mental capacity, etc” or . “moral aspects of imposing the death penalty”; even a State witness testified of the victim being raped, the trial judge did not make a finding of rape but then used rape as a basis for his sentence and that the trial judge did not fully explore and consider extenuating circumstances such as non-legal provocation as may arise out of custom or relevant customary considerations which may have influenced the killing. 

25. The State v Mongi (2007) N3259 (Sevua J.): On 17 July 2006, the prisoner pleaded guilty to a charge of wilful murder. The deceased, then aged 7 years had gone to the bush to collect galip nuts. The prisoner, who had consumed marijuana, came by and saw her collecting nuts. He grabbed her and pulled her towards a cliff where he proceeded to punch her repeatedly and hit the deceased on her head resulting in a concussion. While the victim was concussed he carried her to another area and when the deceased regained consciousness, he punched her on her head again. As he was going to punch her again, he missed and punched a rock. He became incensed then twisted the deceased’s neck killing her instantly. 

26. After the victim had died, the prisoner attempted to penetrate her vagina but could not as the deceased was too small. He then pushed his fingers into her vagina and anus to allow easy penetration. He then proceeded to sodomize her. He later carried the deceased body to a small cave and hid the body in it. The body was recovered in the evening following a search.

27. The State-v-Arua Maraga Hariki (2003) N2332, (Salika, J; (as he then was)) imposed the death penalty on an offender who killed two young men with whom he had been drinking. The prisoner had killed his first victim by suffocating him. He grabbed the victim by the throat cutting off air supply and in the process also inflicted an incision to the throat which medical evidence revealed could have caused death. His Honour did not make any finding as to how the second victim met his death but nonetheless concluded that the prisoner had also killed him in a single course of conduct. His Honour took into account the prior good record of the prisoner, that he was married with 5 children, a first time offender and has a good home at Baruni. However, His Honour said that two young lives were unnecessarily lost at the hands of the prisoner who had no regard to the sanctity of life and without regard to their right to live. His Honour considered the killing in this case to warrant the death sentence. He imposed a life sentence for the first count and death sentence on the second count. The convictions and sentences were, however, quashed on appeal for procedural irregularity based on the Supreme Court’s decision in Ombusu’s case. (Arua Maraga Hariki v The State, SCR 12 of 2013 (unnumbered and unreported judgment dated 29th August 2007) 

28. The State v Kiapkot (2011) N4381 (Sawong J.) There the prisoners were found guilty after trial of the wilful murder of 8 persons at sea between the Duke of York islands, East New Britain and West Coast of Namatanai in New Ireland Province. They had lain in wait in two other dinghies and intercepted and blocked off the victims’ dinghy, one in front and the other at the stern. They shot the boat operator and his crew, took control of the victim’s boat and then proceeded to rob the passengers before shooting all of them dead. Sawong J. found this to be a worst case of wilful murders in that not only were the multiple killings intentional more importantly there was pre-planning and organization before the victims – most of whom were innocent of any wrong-doing – were eventually killed. He also found that the killings were gruesome and done on the sea where it was impossible to escape which demonstrated the viciousness, brutality and the gravity of the case. The prisoners maintained their innocence despite the strong findings against them and showed no remorse at all. The prisoners were each served the death penalty. 

29. An accomplice of Kiapkot and his co-prisoners, Kenny Wesley, was found guilty in a separate trial by Maliku, AJ. His Honour took a similar view as Sawong J. did in Kiapkot’s case and sentenced the prisoner to death. (The State-v-Kenny Wesley, CR. No. 293 of 2010 (Unreported Judgment of dated 1.5.12.) 

The State v Amos (No.3) (2012) N5073 (Lenalia J.): There the prisoners were found guilty after trial for the wilful murder of three persons. This case also involved the use of dinghies by persons from Southern New Ireland. The court found that the prisoners had planned the murders of the victims and lured them in their dinghy into the swamps off Tokua on the pretext that they ran out of zoom. Once in the swamp the prisoners (and three others who at the time of sentence were yet to be arrested) shot the victims and then buried their bodies in the swamp. They then pushed out to sea to a village in the Duke of York Group where the second prisoner was dropped off- shore. After floating for sometime he called for help and was picked up by the villagers. The village immediately sent out rescue teams one of which picked up the first prisoner who advised them that their dinghy had capsized at sea and three other passengers had either drown or were still floating at sea. Lenalia J. found that the prisoners had “ mercilessly planned, procured and counselled with others to slaughter the three victims” and that the killing was “heinous, senseless, brutal, and barbaric and was cold blood killing and was deliberately planned” (paras., 57 and 74). The prisoners maintained their innocence and remained unremorseful. His honour viewed this case as a worst case and sentenced the prisoners to death.

30. There are other wilful murder cases where judges of this Court have imposed terms of years. For instance, in The State-v-Seth Ujan Talil (17.11.2010) N4159, Cannings, J imposed a sentence of 40 years for a double murder committed during a mediation proceeding. Seth Ujan Talil was convicted after trial of two counts of wilful murder. The two deceased were brothers aged 35 and 42 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The doctor found that the cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

31. In Alois Erebebe & Anor v The State (2013) SC 1228 (Gavara-Nanu, Davani, Hartshorn, Yagi & Makail JJ.), the Public Prosecutor cross-appealed against the sentences of the appellants who were convicted for the wilful murder of 9 persons – 5 adults and 4 children. The trial judge Batari J. sentenced the cross-appellants to 30 years for the wilful murder of the adults and life imprisonment in respect of the 4 children. The facts of the murders as restated by the Supreme Court are; there had been an ongoing conflict between certain clans which had resulted in previous death. Hence the prisoners and the clansmen held a meeting and planned and executed an ambush on their enemies. As the vehicle in which the nine deceased were travelling entered the ambush, five adults including two elderly men were killed by sustained machine gun fire. When the vehicle stopped, four children aged four and five years were dragged from the vehicle and cut on their heads with bush knives. The wounds to the children's heads consisted of brain penetrating cuts that had been carved to resemble various letters of the alphabet. The trial judge found that the children "died slowly and in the most horrific painful way.” 

32. The majority (Davani J. dissenting) said at paragraph 61 that:

... The murders, especially of the four children, were premeditated, vicious, brutal, in cold blood and of innocent and defenceless or harmless persons, with a complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the lives of those persons. The murders are unthinkable, consciousless, senseless, pitiless and certainly unnecessarily tortuous. Further, as mentioned, counsel for the prisoners has conceded that the murders come within the worst categories listed in Ume v. The State (supra).

33. The court viewed the killings to be the worst wilful murders that had come before it and was therefore satisfied that “the severity of the crimes are such that whatever the extenuating and mitigating circumstances, the degree of moral and criminal culpability and the degree of cruelty exhibited is so grave and reprehensible that the prisoners should have been sentenced to the maximum punishment in respect of the murders of the four children, and life imprisonment in respect of the five adults. We are of the view that the sentences imposed by the trial judge were out of reasonable proportion to the circumstances of the crimes and infer that some error must have occurred in the exercise of the trial judge's sentencing discretion.” 

34. The court (Davani J. dissenting) then upheld the cross-appeal and set aside the order of the National Court and imposed sentences of death in respect of 4 child victims and life sentences in respect of the 5 adult victims.

35. In Tony Imunu Api-v-The State (29.08.01) SC684 (Unreported Supreme Court judgment the Supreme Court comprising of now retired Judges, Justice Los and Justice Sevua and Kandakasi, J considered an appeal against sentence of imprisonment for life. It dismissed the appeal and held that the court below should have imposed the maximum penalty for wilful murder - death penalty. The Supreme Court's statement in that case is obiter, however it is relevant for me to quote and draw comparison of the circumstances in that case to the instant case. This is because the Court expressed a firm view that the National Court should not hesitate where appropriate to impose the death penalty. The Court 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".

36. Let me now turn to the case at hand.
 
CURRENT CASE

ADDRESSES TO THE COURT

(i)	Prisoner

37. In his address to the Court the prisoner had the following to say:

"Your Honour I say sorry to what I did to the mother and the child. I say sorry to their family. I say sorry to my church leaders and to my community. I say sorry to this Court for breaking our mother law. I say sorry to God for breaking his laws in the Good Book. And I say sorry to my own family. That is all."

(ii)	Defence Counsel

38. Mr. Mesa for the prisoner conceded that this is a worst instance of wilful murder. However, whilst acknowledging what the Supreme Court had said in Ure Hane v The State (supra) and Loke Ume v The State (supra) and the court's approval of the US Supreme Court's statement in Profitt v Florida (supra) that a death sentence may be imposed in appropriate cases where the killing is "consciousless, senseless, pitiless and unnecessarily tortuous" counsel submitted that there are far worse cases which fit those descriptions. These are such cases as The State v Gregory Kiapkot (supra), The State v Mark Poroli (supra), The State v Amos (No.3) (supra), The State v Ben Simakot Simbu (supra).

39. Mr. Mesa submitted that this case fell under Category 4 of the Manu Kovi tariffs and Category 6 of the considerations in Loke Ume. However, this does not mean that the death penalty should be automatically imposed because the sentencing court retains its discretion to impose a lesser sentence and because death is the ultimate penalty the court has a duty to investigate any and every mitigating and extenuating factor available to the prisoner as a basis for a sentence less than death. (Steven Loke Ume v The State (supra); Sandra Lockett v Ohio (1978) USSC 154) 

40. Relying on Sandra Lockett v Ohio (supra), which is only of persuasive authority, Mr. Mesa submitted that the court should further consider the circumstances and history of the offence and the character, history and condition of the prisoner. Three things should dissuade the court from imposing the death penalty. These are – 

(i)	The victim induced or facilitated the death;
(ii)	It is unlikely that the offence would have been committed, but for the fact that the prisoner was under duress, coercion or provocation; 
(iii)	The prisoner suffered mental deficiency

41. In the current case counsel argued that there was provocation in the non-legal sense which extenuated the offence. Counsel refers to the prisoner's confessional statement in depositions where the prisoner stated that he and deceased woman were in a relationship and that he'd taken care of her and spent a lot of money on her. He had, however, found out that while she was with him she had slept with her previous partner. This incensed him and drove him to commit the offence out of extreme passion. The prisoner repeated this in his Pre-Sentence Report.

42. As regard the child victim Mr. Mesa urged the Court to consider that the prisoner did not intend to kill him at all, something he maintained from the outset as evident from his Record of Interview. Counsel asked the Court to treat the child's death as murder for the purpose of sentencing.

43. Mr. Mesa submitted that there are mitigating factors operating in the prisoner's favour. These are –

(i)	He pleaded guilty
(ii)	He is a first time offender and of prior good character
(iii)	He co-operated with the police by making an early admission and 	assisted in the recovery of the bodies
(iv)	He expressed genuine remorse 
(v)	K10,000 compensation had been paid and acknowledged by the 	father of the deceased woman, Champion Sorari. 

44. Counsel, however, conceded that there are aggravating factors such as:

(i) The prisoner had formed a planned to kill his partner
(ii)He isolated both deceased persons to a remote location
(iii) He used a dangerous weapon
(iv)The injuries inflicted on both deceased persons were fatal
(v) Death was instant 

45. Mr. Mesa also submitted that the current case should be distinguished from some of the cases cited above which he said should be deemed as the worst types of murder in that:

(i) They involved sophisticated planning and mobilising amongst a group of people 
(ii) Convictions in two of the worst cases (Amos (No.3) and Kiapkot) were reached after trial
(iii)The killings were methodical executions
(iv)The killings were committed in conjunction with other offences
(v)There was no remorse despite guilty verdicts

46. Counsel submitted that the current case is not so exceptional and therefore should not attract the death penalty. If anything he argued that this case is comparable with the cases of The State v Peter Wirundi (2010) N3994, The State v Sapu (2012) N4533 and The State v Tayamina (No.3) (2013) N5288 where sentences of 30 years, life and 20 years were imposed respectively. 
 
47. In conclusion Mr. Mesa submitted that while this was a serious case it is not as aggravated as the other cases. He reiterated that the offence was committed out of extreme passion and that there are good mitigating and extenuating factors that should merit the imposition of a sentence other than death. He submitted that sentences of 25 years and 30 years should be appropriate.

(iii) The State

48. Mr. Waine on the other hand argued very strongly that this was a case that must attract the death penalty. He quoted a long list of authorities, some of which I have cited above, that bespoke of the need to impose the maximum penalty – death – because this is a worst case of willful murder. Counsel argued that apart from the fact that it was a double murder it also involved the killing of a child, it was also an ambush thus resembling the cases of The State v Simbu (No.2) (supra) and Alois Erebebe & Taros Togot v The State (supra).

49. Counsel referred the Court to the prisoner's Confessional Statement dated 29th December 2011 and his Record of Interview dated 06th of March 2012. There the prisoner freely admitted why and how he killed the woman and her child. He said that the deceased Victoria had been living with him for some 7 years - living off his wages and proceeds from his family oil palm block. On the day of the offence he came to learn that Victoria's estranged husband had spent the night with her so he lied to her and his own sister to accompany him to his garden to weed. Victoria took her 7 year old son along and they went to the prisoner's garden. After they had finished weeding he lured them further into the brush where he cut the child and his mother on their necks with his bush knife. He and his sister escaped to Embogo. There he put his sister on a PMV bus to go home. He then surrendered to the Community Based Constable (CBC) and later led the police to the crime scene to retrieve the bodies of the deceased. In the Record of Interview he said that he only wanted to kill the mother who at the critical point in time was carrying her child. As he swung the knife to cut her she turned around and he cut the child instead on the neck. Seeing that he had cut the child he then cut the mother also on the neck.

50. Mr. Waine submitted that this was a bizarre and horrific killing. The child was 7 years old and innocent of any wrong doing. His mother was also innocent. They did not provoke the prisoner in any way. The attack was an ambush type killing. The deceased did not know what was coming their way and did not raise a finger in self defense or have a chance to escape or call for help. They were defenseless, helpless and innocent victims of the prisoner. And the motive counsel said was over Victoria's husband visiting her. Because of his jealousy he planned the killings, lured Victoria and child and his sister into his garden on the pretext of weeding the garden and there he executed his plan effectively without being disturbed. 

51. Counsel said that the prisoner could not say that he did not mean to kill the child because the two wounds sustained by the child clearly demonstrated his desire and intention to kill. The prisoner displayed a blatant disregard for the sanctity of this young life and his mother and counsel said that no killing could be described as worse than this. 

52. Mr. Waine acknowledged that there are mitigating factors in favour of the prisoner being that he is a first time offender, he cooperated with the police making early admissions in his confessional statement and Record of Interview, plea of guilty, expression of remorse, payment of Bel Kol to preserve peace and harmony and that he is a Christian and an employee.

53. Counsel, however, said that there are significant aggravating factors. These are; use of a weapon (bush knife), viciousness, strong desire and intention to kill, double killing at the same time, there was motive and pre-planning and this was vengeful or payback killing.

54. While the prisoner is entitled to some discount Mr. Waine argued that there are no extenuating circumstances such duress or coercion or medical condition such as psychopathic personality, lack of sophistication or traditional customs, practices or beliefs which can be said to have influenced his behavior. While there might have been de facto provocation counsel argued that the prisoner's relationship with the woman was unlawful from the outset.

55. Counsel submitted that what the prisoner deserves is a sentence pronounced in the words of Kandakasi J. in Steven Loke Ume v The State (supra) at p.35 that:

The offender's culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate 	punishment for his crime in all the circumstances.

56. The State therefore called for the death penalty on both counts.
 
Pre-Sentence Report & Victim Impact Statement

57. A Pre-Sentence Report (PSR) was presented to the Court on the 11th of September 2013 but was deemed inadequate given the seriousness of the offence. I ordered a supplementary report to be compiled together with a Victim Impact Statement (VIS). These were filed on 06/11/13.

58. The PSR shows that the prisoner was married with a child and lived at Kararata Village along the Oro Bay Road. Both his parents are still alive. He is 30 years old. He is illiterate but healthy and prior to his offence was employed as a driver with Embi Mini Estate. He is a deacon in the New Apostolic Church and actively participated in community and church activities.

59. The prisoner's parents are concerned about their son's future but left it to the law to deal with him because he has committed a very serious offence and besides he has destroyed their relationship with the victims' family who are their neighbours. The two families have agreed to K20,000.00 as Bel Kol to be paid in monthly instalments of K1000.00. By 20th October 2013 a total of K11,500.00 had already been deposited into Mr. Champion Sorari's personal account. Apart from that K2500 worth of foodstuff and 2 pigs worth K1000 were contributed towards funeral expenses.

60. Mr. Hayward Teonda, a village Chief of Kararata informed the probation officer that the prisoner lived a normal village life and always shared his garden produce and his hunt with the elderly in the village. He was a youth leader and was involved in church activities in the village and surrounding villages and he shocked everyone and even to this date they are still wondering why he committed such a serious offence. He confirmed that the two families are neighbours and have always lived peacefully prior to the incident.

61. A Victim Impact Statement (VIS) were obtained from Victoria's mother Mrs. Marinda Sorari and her uncle Mr. Victor Sorari. Her father avoided being interviewed. Mrs. Sorari simply said that the offence committed against her daughter and grandson was serious. She had nothing much to say but left it to the law to take care of the offender. Mr. Sorari said that a very serious offence had been committed against an innocent mother and child when they least expected it. Family members did not retaliate but humbly let the law run its course so that the offender will face the full brunt of the law. He said the village and surrounding communities were shocked and still do not understand why innocent lives should be lost in such a manner.

ANTECEDENTS

62. The prisoner's antecedents can be gleaned from the Pre-Sentence Report. These are:

•		The prisoner is 30 years old
•		He is married with a child and lived at Kararata Village along the Oro Bay Road. 
•		Both his parents are still alive. 
•		He is illiterate but healthy and prior to his offence was employed as a driver with Embi Mini Estate
•	 He is a deacon in the New Apostolic Church
•		He has no prior convictions

MITIGATING FACTORS

63. I find the following mitigating factors in the prisoners favour:

(i) He pleaded guilty early the charge
(ii) He is a first time offender and of prior good character
(iii)He co-operated with the police by making an early admissions in his confessional statement and Record of Interview and assisted in the recovery of the bodies
(iv)He expressed genuine remorse
(v)K11500.00 Bel Kol had been paid and acknowledged by the father of the deceased woman, Champion Sorari. A sum of K3000 in cash and kind (food stuff and 2 pigs) were also contributed to funeral expenses.

EXTENUATING FACTORS

64. I find that the prisoner was angry if not incensed by the fact that Victoria's estranged former partner had spent the night with her. Hence he was provoked in the non-legal sense.

AGGRAVATING FACTORS

65. I find the following aggravating factors against the prisoner:
 
(i)The use of a dangerous weapon (bush knife)
(ii)The killing was vicious
(iii)The was a strong desire and intention to kill
(iv) This was a double killing at the same time
(v) The killing of a helpless and innocent child
(vi)There was motive and pre-planning and this was vengeful or payback killing
(vii)There was some cunning involved when the prisoner lured the victims to the isolation of his garden on the pretext of helping to weed it.

66. So is this a worst type of wilful murder? Both counsel agree that it is and I agree with them. It in fact it falls under Category 4 of the Manu Kovi Tariffs for wilful murder and features considerations 1 and 6 in the Loke Ume categorizations which may warrant the imposition of the death penalty. Basically what Manu Kovi says under Category 4 (worst cases) for wilful murder, whether on plea or after trial, is that the death penalty may be imposed if there are special aggravating factors, absence of extenuating circumstances, no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the offence. Loke Ume says that where the wilful murder involves the killing of a child, a young or old person, or a person under some disability needing protection or the killing is of two or more persons in the single act or series of acts the sentencing court may consider imposing the death penalty. But does this mean that the Court must impose the ultimate penalty every time these considerations appear in the circumstances of particular case?

67. I do not think so because the court retains its sentencing discretion under Section 19 (1) (aa) of the Code as we have seen unless that discretion is removed or curtailed by Parliament through legislation. Indeed the death penalty is not mandatory and the penalty remains merely the maximum (Steven Loke Ume v The State (supra)). 

68. Discretion, however, has to be exercised judiciously and according to established principles. Unlike other jurisdictions such as those States in the United States of America where the death penalty is current (e.g. Florida and Ohio) and where State law prescribes mitigating and aggravating factors for capital offences to guide the sentencer, be it the jury or the judge, we unfortunately do not have such statutory guidelines. So in effect Parliament had left it entirely to the sentencing court to exercise its discretion in deciding whether to impose the death penalty or not. And as we have seen it has fallen upon the Supreme Court to provide such guidelines and it has. However, it must be reiterated that these remain guidelines only and the sentencing court is pretty much left to itself to impose sentences in its discretion according to the circumstances of each case. 

69. However, it must be said as regard the exercise of discretion and especially unfettered discretion that whilst it must be done judiciously and according to law and established principles, the downside is that it can also be exercised capriciously and arbitrarily. Exercise of discretion to impose the maximum penalty can be arbitrary or capricious if it is imposed indiscriminately in every case where one or more of the considerations in Ure Hane, Manu Kovi and Steven Loke Ume is or are present. But what else is there to consider?

70. The death penalty is "quali[ta]tively" different from other penalties as the Supreme Court said in Steven Loke Ume and therefore it must be imposed only in the most exceptional of cases where the aggravating factors are especially grave. The court there laid down some consideration where the death penalty may be considered as we have already seen. But it also went on to describe such killings as those that are "unthinkable, "consc[ience]less", "senseless", "pitiless" and "unnecessarily torturous": see Profitt v Florida 428 US 249 at 255. The crime is committed "by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning". Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender's culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life ..."(underlining added)

71. So as I understand it (and I may be wrong) the presence of those considerations in Ure Hane and Steven Loke Ume does not automatically warrant the imposition of the death penalty. Something more is needed. The killing must have been especially and exceptionally aggravating in the circumstances described by the Supreme Court to the extent that any extenuating circumstances or special mitigating factors are rendered ineffective. (Manu Kovi v The State (supra)

72. And speaking of mitigating and extenuating factors and circumstances, the Supreme Court had said, again in Steven Loke Ume, that these are not new and indeed they are not. However, one would have thought that given the "qualitative difference" of the death penalty some guidelines should also have been given to mitigating and extenuating factors specific to capital offences. To that end I tend to agree with Mr. Mesa's argument in reliance on Lockett v Ohio (supra) that apart from the traditional mitigating and extenuating factors the death penalty may not be imposed where:

(i)	The victim induced or facilitated the death;
(ii)	It is unlikely that the offence would have been committed, but for the fact that the prisoner was under duress, coercion or provocation;
(iii)	The prisoner suffered mental deficiency

73. Of course it must be noted that these are statutory mitigating factors but I do not think they are entirely inappropriate to the circumstances of this country. Hence I adopt them.

74. So the upshot of all these is that I must, as the Supreme Court said in Steven Loke Ume when adopting Locket v Ohio, consider the circumstances and history of the offence and history, character and history of the prisoner. So this I now do.

75. This offence was pre-meditated and involved a degree of planning on the part of the prisoner. He was obviously incensed with the victim Victoria, with whom he had been living in a de facto, if not an adulterous relationship (if indeed she was married to her previous partner which is not apparent from the depositions) for some 7 years when he learnt that her previous partner had spent the night with her. It would seem that he was driven by extreme passion to take the course that he took. It appears from his confessional statement that he spontaneously reacted to the news about his partner's alleged tryst with her former partner. Without as much as asking Victoria as to the truth or otherwise of what he had heard he simply went to her and ask her and his sister to accompany him to his garden to do some weeding.

76. Of course this was a lie for he had already formed the intention to kill Victoria by luring her to the isolation of his garden and the bush. Why he asked his sister along though is baffling to say the least. After weeding his garden he took the women and the child further into the bush, obviously still intent on carrying out his plan, and there in the flash of a moment he quickly and neatly slaughtered the child and his mother in the full view of his sister. The two did not know what was coming and simply did not have the time to defend themselves let alone run away. 

77. The prisoner's first swing of the knife caught the child who was being carried by the mother. It appears that he must have swung the knife twice because the Post Mortem Report of the 22/12/2011 for the boy revealed that he "sustained 2 huge lacerations on the base of the skull (11x2x2cm) and left side of the neck extending into the spinal code. The laceration extended into the skull and caused a linear fracture." The child died from cardiac arrest due to hypovolaemic shock from heavy loss of blood.

78. Not satisfied with having fatally wounded the child whom he refers to in his record of interview as his son he immediately cut the mother. All of these would have happened in flash. The Post Mortem Report for Victoria reveals that her "neck was severed on the left side fracturing the cervical vertebrae and hanging on by the skin." The oesophagus and trachea were spared but there were right flank bruises, a left forearm laceration resulting in a compound fracture of the left ulna. The examining doctor concluded that the most likely cause of death was blood loss. It would appear that the prisoner also struck Victoria twice judging by the cuts to the neck and the left forearm. 

79. There is no dispute therefore that this is one of the worst wilful murder cases and one that may deserve consideration for the death penalty. There is no dispute that the prisoner displayed complete disregard for the sanctity of life. But are the aggravating factors of the case so especially or exceptionally aggravating? 

80. I will return to this later. But let me consider the prisoner's personal circumstances. I take into account that he is a simple illiterate villager and seems to be healthy physically and psychologically. In the absence of a psychiatric assessment report I would say that he may not suffer from any mental deficiencies or psychopathic behaviour from my observation of him while in the dock. If anything I think that he simply lost his wits when confronted with his partner's one night fling with her former partner.

81. I say this advisedly and with a lot of qualification though because, unfortunately, capital offenders in this jurisdiction do not have the benefit of psychological and psychiatric services that are available to those in western jurisdictions such as in the United States and elsewhere. And that perhaps is one reason why a sentencing judge, faced with a plea to impose the death penalty, should thread with extreme caution because in the absence of such a report, one simply cannot say with any degree of certainty that the offender was not mentally effected somehow. 

82. The provocation as was in this case, albeit non-legal, on the prisoner must have affected him so much that it can be reasonably inferred that he lost his power of reason completely and so he committed this horrific crime on two people whom he would obviously have loved. This I think is a significant extenuating factor, one that unfortunately the Victim Victoria would have had some part in. And this should in the circumstance have a large impact on whether or not I should impose the death penalty.

83. But did he act in conformity with some cultural or traditional belief? It also would seem on the face of it that that was not the case. People, even in village settings and cultural settings, simply do not react as the prisoner did in this case to such situations. 

84. The prisoner's Pre-sentence Report and the Victim Impact Statements by the victims' relatives do not assist do the Court much. The victim's relatives were shocked by the sudden and brutal murder of mother and child but have left up to the law to run its course. Their relatives did not retaliate but admirably set about to negotiating the preservation of peace and harmony between the two families and clans. Bel Kol was amicably set at K20,000.00 and K11500.00 of that has been paid. In all of this, the prisoner should get no credit and should not feel that any amount of Bel Kol or compensation, even K20,000.00 which is a substantial sum in the village context, should somehow lessen the gravity of what he did. So is the case so exceptionally aggravating to warrant the death penalty?

85. On the face of it, it does seem to be the case given the fact that it is a double murder and one of the victims was an innocent child. It is clear that double or multiple killing and even single killings have been met with the ultimate penalty as seen from the cases cited above. But as I have alluded to above the killings in this case must be so "unthinkable, "consc[ience]less", "senseless", "pitiless" and "unnecessarily torturous or "was committed a by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning." I accept that these killings indeed seem unthinkable, senseless and pitiless but they were not unnecessarily tortuous nor can the prisoner be described as a persistent or habitually violent and ill-tempered man. On the contrary the prisoner was an active youth leader in his local Church, village and community who are at loss how and why he could have committed this atrocious crime. 

86. That being said the case may qualify for the imposition of the death penalty. However, when compared with some the cases surveyed above, some of which were committed in conjunction with or in the course of committing other offence or subjecting the victims to torture or further indignities or where killings were methodically planned and executed, the circumstances of this case would pale into comparison. The most exceptionally grave case involving multiple killings of both adult and children victims in a well planned scheme that was executed with military precision is the recent Supreme Court case of Alois Erebebe v The State (supra). For the wilful murder of the 5 adult victims in that case the appellants' prison term were increased to life imprisonment while they were sentenced to death in respect of the 4 children victims. That in my view was much worse than the current case. Yet the Supreme Court opted for life sentences even though it did not matter in the end because they will face the gallows anyway. 

87. For the above reasons I feel that, despite a strong case being made for the imposition of the death penalty, a sentence less than that should be appropriate in the circumstances. Therefore I feel that the most appropriate sentence in this matter is life imprisonment.

88. I hasten to say, however, that I take full cognizance of the prevalence of homicides and other offences of violence in this Province and the country for that matter. I accept that these should be met appropriate sentences by the courts. I accept and acknowledge that despite heavy sentences including death sentences in the recent past, killings continue to flourish almost unabated and with increasing brutality and viciousness. Is this an indictment against the criminal justice system for not doing enough to deter would be offenders by imposing appropriately stiff sentences? 

89. I think not because a lot of people who commit these offences seldom stop to assess the consequences of their actions, lesser still consider the consequences others have paid for similar actions. If we manage to deter other would be offenders, good, but to think that we can deter everyone and decrease the rate of violent crimes is asking for the impossible.

90. For that matter, whilst deterrence remains a cardinal objective of sentencing we have to acknowledge that for some offenders the object should be simply to remove and separate them from society by serving them what they justly deserve - longer sentences or death where appropriate. Should deterrence or rehabilitation is achieved as a result that is plus for society.

SENTENCE

91. I therefore sentence the prisoner as follows:

1.	For the willful murder of Junior Sorari the prisoner is sentence to imprisonment for life; and

2.	For the willful murder of Victoria Sorari the prisoner is also sentenced to imprisonment for life

92. Since the two counts were part of the same transaction and event the sentences will be served concurrently. He will serve his sentence at Biru Corrective Institution. 

Orders accordingly.
________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner