State v Kurus [2014] PGNC 96; N5652 (6 June 2014)

N5652

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1245 OF 2013

THE STATE

-v-

TONIAS KURUS

Wewak/Maprik: Kirriwom, J.
2014: 4 March & 6 June

CRIMINAL LAW – Wilful Murder – Pleaded Guilty – Serious Aggravating Circumstances – Deceased, a 15 year old female victim – Violently raped and hit repeatedly on the back of the neck with the blunt side of bush knife – Prisoner, a 15 year old boy on a payback mission over conflict with father of deceased - Killing was pre-meditated and executed in cold blood – Revenge killing – Long standing conflict over land with victim's father – Deceased innocent of any wrong-doing whose body was mutilated with cuts all over and both nipples removed – Aggravating factors outweighed plea of youth - Sentenced to determinate term of years

Considered Manu Kovi v The State Sentencing Guidelines against Supreme Court Judgment in Thress Kumbamong v The State and discussions therein - Discussion on whether determinate or indeterminate term of punishment appropriate – Whether sentencing authority needs to consider the implications and potential effect of early release against sentence imposed by the court – Whether justice is truly served when court has no discretion to impose restrictions on commencement of early release such as parole, release on licence and remission.

Facts

A young boy aged 15 threatened a 15 year old girl alone in the bush with a bush knife and raped her. He then struck her repeatedly on the back of her neck with the blunt edge of the metal part of the bush knife and she fell to the ground. She died instantly. He delivered multiple cuts to other parts of the body including her genitalia. He severed both her nipples from her breasts.

Revenge attack of an innocent young girl by the prisoner who felt deprived and cheated of their right to customary land by her father and family. She became the sacrificial lamb for her father's decision and action in a protracted land dispute that turned to hate in this young prisoner who planned over time to do what he did.

Court considered the maximum penalties available, treating this as a worst case of wilful murder, and chose against both death and life sentence for the reasons given and opted for a determinate term for the reasons given.

Detailed reasons in the judgment.

Cases cited:

The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (2004) SC741
The State v Tony Emmanuel; The State v Edward Yau (2013) N5125
Tony Imunu Api v The State (2001) SC684
The State v Ben Simakot Simbu (No 2) (2004) N2546
The State v Francis Waka Sapu (2012) N4533
Manu Kovi v The State [2005] SC789
Thress Kumbamong v. The State (2008) SC 1017
The State v Wesley Nobudi [2002] N2510
Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137

Legislation

Criminal Code of Papua New Guinea
Parole Act 1991

Counsel:
P Tusais, for the State
F Fingu, for the Accused

JUDGMENT ON SENTENCE

6th June 2014

1. KIRRIWOM, J.: The prisoner Tonias Kurus was 15 years at the time of commission of this crime. He was charged with wilful murder and appeared before me on 4 March 2014 at Maprik where he pleaded guilty to this very serious offence. Wilful murder carries a maximum penalty of death.

2. The prisoner admitted killing the deceased Junely Robert on 6th May 2013 at Kumunikum village Wosera Gawi District when she went to the creek near the village to wash her dirty clothes. The prisoner who had harboured some hatred towards the deceased's family over many issues including customary land and a scar he carried on his neck that was caused by the father of the deceased, took this opportunity to even the score with the family when he saw the deceased headed for the river. He took his bush knife and followed her and according to his own story, he sexually penetrated her against her will and when she threatened to tell her father of what he did to her, he showed her the scar left on his neck by her father and struck her repeatedly on the back of her neck with the blunt side of his bush knife until she fell down dead and he cut off both her nipples.

3. When the body of the deceased was discovered in the bush by the father and several other persons, the following were observed on the deceased:

1. She was lying face down on the ground very much dead.
2. Top part of the body was naked
3. Back of her neck was black and swollen
4. Looked like body was in the water as it was wet and smelly

The father then turned over the body and they observed:

5. There was bush knife cut on her head
6. Both nipples on both breasts were removed or cut off
7. Left eye-ball was plucked out
8. Both big toes on both legs were smashed
9. Deep knife wound on her right thigh
10. Deep cut on left rib cage
11. Cut on her throat.
    

4. When he was first asked he blamed another villager for compelling him to kill the deceased. But following his apprehension by police and when interviewed he denied the earlier story and said that there was no one else involved. It was just him and it was a revenge attack he had planned carrying out when opportunity presented itself because of what Robert Kwingu Wingawi did to him and also because Robert Kwingu took back all the land previously given to his family by their ancestors. His family had nowhere to make gardens or cut sago for food and for 13 years they put up with this life without meaning and substance.

5. In his own words, the prisoner told the villagers before his arrest:

"I (Tonias) have sexual intercourse with Junely first and Junely told me she will go and tell her father Robert Kwingu so I was scared of trouble and also I got angry and I showed a sore scar mark on my neck and I told Junely (sic) that I did not eat properly, your father and his family stopped me and my family from making gardens and washing sago for 13 years so I did not make garden and eat properly. So I turned the blunt (sic) side of the bush knife and hit the back of Junely's neck five times and Junely fell on the ground and died."

6. In the record of interview he denied his earlier story and maintained that he only struck her once with the blunt side of the bush knife and she died and denied cutting up the body after killing her. This change in story is also not consistent with his answer to question 20 in the original tok pisin version of the record of interview which I set out below:

Q20. Mi putim long yu olsem, amass taim yu paitim beksait nek bilong Junely long bek sait bilong bus naip?

Ans. Wanpela taim tasol mi paitim bek sait long neck bilong Junely na bus naip (sic) mi sapim sharp ya olsem na naip iwel na katim susu bilong Junely na em idai.

7. So while the prisoner is denying cutting up the body after striking her once on the back of her neck with the blunt side of his bush knife, his answer in tok pisin to the question clearly shows his confession to cutting off the nipples on the breasts of the deceased.

8. The English translation of the record of interview does not have the full interpretation of the answer given in the original pidgin version either by inadvertence or incompetence. The answer in English translation simply states: Ans. Only one time I hit Junely at the back of her neck with the blend (meaning 'blunt') side of the bush knife. That is all. This clearly shows the deficiency in the English translation of the tok pisin record of interview.

9. The Medical Certificate of Death completed by hand written scribbling gives particulars of the deceased found two days after death in the bush as Junlyn Kuingu, 15 year female Melanesian of Kumunukum No 3 whose occupation was School kid (Gr 4) prepared by a Community Health Worker or an Assistant.

10. On allocutus he admitted he was at fault and said sorry to the deceased, her family and to the court and asked for mercy from the court.

11. The prisoner is the only child of his parents from Kumunungi village North Wosera. Both parents are alive and they are followers of Catholic faith. He completed Grade 4 primary education. He is now 16 years old. There is very little to be said about his back ground.

12. In mitigation on sentence counsel for the prisoner urged the court not to consider death penalty but a determinate term of imprisonment because of the youthfulness of the prisoner. Court was urged to take note of the following mitigating factors:

• Early admission when apprehended by the police
• Pleaded guilty
• Youthful offender
• Cooperated with police
• Compensation of K10,000.00 was paid within the same month
• First time offender
• Previously wounded by the deceased's father for which he carried a scar on his neck and never compensated for it
• Long outstanding grievance over customary land with the deceased's father and his family
  

13. Counsel submitted that this was not a worst case of wilful murder that required death penalty to be considered because of the extenuating circumstances in the case and he referred in particular to the half buried grievance that the prisoner had with the father of the deceased who left a scar on his neck and never compensated him. Secondly counsel referred to the long standing dispute over customary land that the deceased's father and his family claimed all and left nothing for the prisoner and his family, an unhappy situation that marginalised the prisoner and his family to status of visitors in the community.

14. In other words defence was relying on de facto provocation as mitigating factor; there was reason for this killing. But on the reverse side of the coin a challenging story emerges and when taken in total they aggravate the prisoner's criminal conduct. The following are therefore the court needs to weigh as aggravating factors against those factors that mitigate the seriousness of this ruthless and calculated cold blooded murder:

1. This was a revenge or pay-back killing.
2. Deceased was an innocent person killed for somebody else's wrong
3. There was pre-planning and killing was pre-meditated
4. Calculated and cold-blooded murder carried out with savagery
5. Deceased's corpse was further mutilated after death
6. Deceased was raped before she was killed
7. Deceased was only a child of 15 years
8. She was attacked while alone in the bush kilometres away from the village where there was no help in the vicinity
   

15. State is not asking for the death penalty in this case but counsel submits that life imprisonment is appropriate.

16. I have expressed my views on both these maximum penalties and their disadvantages from the perspective of effective deterrence. In my view, as long as death penalty remains a law without enforcement mechanism, it is pointless sending convicts to death rows knowing that nothing will happen for the next ten years or so. I particularly don't like life sentence because unless the law on parole is changed, a life termer, if he is qualified for release on parole under the provisions of Parole Act 1991, he becomes eligible for parole consideration after he had served a minimum of ten years of his life sentence: section 17(1)(c) Parole Act 1991. For determinate sentences, a prisoner must serve at least one third minimum of his head sentence under section 17(1)(a) and (b) of the Act. This law is not unique only to Papua New Guinea. Similar provisions exist in jurisdictions whose parole system is same as ours like Canada for example.

17. I prefer a determinate term of imprisonment so that before parole reaches an offender in prison, he must have served a sufficiently good term of his sentence in prison, if retribution and deterrence mean anything in the sentences imposed by the court. I tried to do this in The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312 when I imposed a sentence of 50 years on Tom Keroi Gurua and David Laiam Bawai because one third of 50 is 16 year and 6 months which means that their parole eligibility falls after the 16th year of their fifty year sentence by which time they will have served no less than 16 years imprisonment. An appeal against the severity of sentence was thrown out by the Supreme Court stating that the case was a fitting one for life sentence. see Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741

18. As a judge I am not supposed to be considering this but what choice have I when the Executive Government has not given me an opportunity to decide on a minimum gaol term that a prisoner whom I sentence must serve prior to becoming eligible for parole, if at all? Under the current system every prisoner serving determinate and indeterminate prison sentence is eligible for parole and the courts have no say on this.

19. However, recent amendments to the Criminal Code increasing the penalty regime for some stealing offences, where both remission and parole are expressly scuttled is perhaps the beginning of long overdue changes. They relate to section 372 offences with the insertions of new subsections (1A) and (1B) which provide the following penalty provision: (1) if a person is found guilty of stealing between K1million and K10million, the penalty is 50 years in prison without remission and without parole. (2) if the amount stolen is over K10million, he shall be sentenced to life imprisonment. This is a mandatory life imprisonment. The courts have no choice but to impose life as prescribed by the Parliament. But it does not prevent Parole Act 1991 coming into play after 10 years if a lifer has been an exceptional model prisoner during his time in gaol who deserved parole consideration. Does this mean that those amendments were introduced in haste without proper research?

20. In The State v Tony Emmanuel; The State v Edward Yau (2013) N5125 I sentenced both prisoners to 40 and 30 years respectively according to the degree of their participation. They were the ringleaders who gave orders for their sons to carry out the attack on a helpless and defenceless man who was already crippled by machete attacks when an arm and a leg were chopped off and yet they ensured that no help was given to him by keeping away Good Samaritans who tried to assist him to the hospital as the deceased bled to death. It was a single crime and not double crime as in this present crime.

21. The Supreme Court dismissed an appeal against a life sentence in Tony Imunu Api v The State (2001) SC684 where the appellant was convicted purely on circumstantial evidence. The deceased a young boy went missing after school and a day or so later his dead body was found without any clothes on him but faeces on his rectum and injuries to his face. According to eye-witnesses who knew the appellant, the deceased was last seen being dragged from a bus at Kaugere bus stop towards Gabutu by the appellant. Following questioning by the police the appellant led them to the site where they could find the body and he showed the police where the body was. Medical evidence subsequently confirmed that the boy was sexually abused and bashed to death with heavy object due to multiple fractures of the head and body. In the court he denied the charge and raised alibi defence which the trial judge rejected and convicted the appellant and sentenced him to life imprisonment.

22. A similar case like this occurred in The State v Ben Simakot Simbu (No 2) (2004) N2546 where the prisoner got angry with a married woman who refused to give him chicken when he asked. The woman was with her two year old child. Angered by her refusal the prisoner pinned the woman on the ground and forcefully had sex with her and then using a rusty iron rod struck her on the head until she died. He raped and killed the mother as the child looked on and cried. He then turned on the child and with the same iron rod also killed the child. It was a callous, cold blooded and horrendous killing of a fellow human being by someone who had nil regard for the sanctity of human life. Ben Simakot is now awaiting execution of his death penalty.

23. I note that in The State v Francis Waka Sapu (2012) N4533 the prisoner and his accomplices pack raped an old woman and then killed her in a barbaric and inhuman fashion that Kawi, J had no choice but to sentence the priosner to life imprisonment. This case has similar characteristics and life sentence is also called for but for reasons I explain in this judgment, I will not impose life sentence.

24. The prisoner is a young man who was 15 at the time of this offence but already thinking like a big man and acting like one too. He not only killed the deceased at the age of 15, the victim too was a child aged 15 whom he first raped and then killed her and then mutilated her body and carried the body to a different location from where he killed her where it was dumped. The extent of damage on the body resembled work of more than one person but he did it alone. An eye pupil was gorged out, both nipples of her breasts cut off and various other wounds on the deceased's body were like the work of a master carver who was meticulous in his art work showing no emotion or mercy. As if what he had done on the day of the murder was not enough burden on his mind to deal with, the following day when the news of the deceased's disappearance reached the entire village, he was in a joyful mood to even sing a song of a woman's skirt flying in the air or with the wind as he mocked the village councillor. This odd behaviour led the councillor and other villagers to question the prisoner about the death and he confessed to the killing. Perhaps that was a hint he gave to the councillor by way of indirect confession to the killing.

25. Senseless murders like this is rampant today than ever before throughout the country. When modernisation is supposed to bring home civilisation and maturity at all levels of the society where respect for the rule of law is to take the centre stage in our everyday life, we are seeing more and more of degeneration of societal values such as respect for others and their lives and properties. Women are being slaughtered callously and heedlessly in cold blooded fashion in the highlands as if they are not human beings on suspicion of practising sorcery. What has caused the sudden change in the thinking in the highlands when belief in sorcery was unheard of in that part of the country in the last century? Today it is treated like an epidemic that is the major killer in the highlands when belief in sorcery was rampant only in coastal communities. These are just some changes occurring today which criminologists and sociologists need to direct their minds and attention to in order to avert any major catastrophe that may await the downfall of the entire human race. All over the world, evil is threatening to overcome good, instead of good overcoming evil and wherever one goes, he or she must always be security conscious.

26. I have given due consideration to the compensation of K10,000 paid by the family which is commendable on the part of the community. But that money will not bring back nor restore a young life prematurely terminated in such brutal and barbaric manner by the prisoner. That compensation payment only caters for the return of normalcy between two factions in conflict in Kumunikum village, North Wosera arising from this prisoner's crime to prevent further bloodshed or escalation of further trouble. It has no impact whatsoever on the prisoner who played no part in raising the money. In a serious crime like this even compensation paid can have very little to nil mitigating effect for purpose of sentence.

27. In arriving at my decision, I have considered fully the sentencing guidelines in Manu Kovi v The State [2005] SC789 and the observations made in Thress Kumbamong v. The State (2008) SC 1017 I have decided to exercise my discretion independently of these two conflicting Supreme Court decisions in imposing what I believe is the best sentence in the present circumstances as the highest determinate sentence prescribed in category 2 for wilful murder in Manu Kovi v The State (supra) being 30 years is inadequate and the maximum of life imprisonment prescribed in category 3 is inappropriate for the reasons I have given already.

28. The prisoner is a young man in a hurry who took on the family burden upon himself to find a solution to their 13 year old problem too soon before he even became a man. And so he must be treated as such. When a youth is involved, whatever his age, in the commission of horrendous and heinous crimes such as wilful murder in ruthless, barbaric and cold-blooded fashion with pre-meditation or aggravated rape accompanied by perverted sexual acts and indignities associated with extreme violence, either alone or in company, he deserves no sympathy or leniency and must be treated like an adult on sentence.

29. When rejecting the plea of youthfulness in The State v Wesley Nobudi [2002] N2510 in a case where the deceased was killed after the prisoner and his accomplices robbed him of his motor vehicle, Sevua, J made the following remarks which I endorse:

"After considering the prisoners' statements in allocutus I can clearly discern that they are using the same old "youthfulness" argument in asking for leniency. However, I take a very serious view of this case. To my mind, this was an unprovoked and unwarranted killing. The deceased did not deserve to die in front of his wife and children like this. The prisoners and their friends had set out to steal motor vehicles on 18th April 2000. They had succeeded in robbing two female occupants of a green Mitsubishi sedan. Their second robbery of the deceased's vehicle had also succeeded. They had accomplished what they planned to do. There was no need at all for Emmanuel Goria to shoot and kill the deceased. Similarly, there was no need for these three prisoners to remain and support Emmanuel Goria. Whilst I acknowledge that the prisoners were very young at the time of this crime, I consider that they ought to be treated like men if they are prepared to go to the extent of killing the deceased after they had robbed him of his car. As far as I am concerned, this was a callous and heinous crime that deserves the maximum penalty.

I do not consider that "youth" can still be a good mitigating factor in serious cases like willful murder. In Paulus Mandatititip & Anor v. The State [1978] PNGLR 128; the Supreme Court said that deterrent sentences are required where the offence is prevalence and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency. In the present case, I see no exceptional circumstances which warrant a term of imprisonment other than life imprisonment, if not the death penalty. In Peter Naibiri and Kutoi Soti Apia; SC 137, 25th October 1978, the Supreme Court had the occasion to consider the above case. The Supreme Court said at page 2:

" As was pointed out in Paulus Mandatititip & Anor v. The State ...... this Court finds difficulty in these days in accepting pleas of youthfulness to serious crime, and this must be so particularly in regard to violent crime of the most serious categories."

In the latter case, the two prisoners aged 17 and 19 years respectively were each sentenced to life imprisonment for the attempted murder of three policemen. Their appeal was dismissed. In addressing the issue of youthfulness, the Supreme Court observed that in Papua New Guinea society it is a fact that youths of 17 and 19 are frequently men accepting adult responsibility in society's affairs. The Court further said that the two prisoners certainly did not behave like immature youths. This statement of the law underpins what I have alluded to earlier on in respect of the issue of youthfulness, and frankly, I am of the view that if youths are able to behave like men, they must accept the consequences like men, and not plead their youthfulness.

I accept that the prisoners were young offenders at the time of committing this crime, in particular, Wesley Nobudi and Franky Yalikiti Fravo. All three are first time offenders. However, an innocent man has had his life terminated prematurely. He has left a family without the support required to survive in modern Papua New Guinea. Besides, the deceased had a very promising career as a Bank Officer with Papua New Guinea Banking Corporation. Not only was his life taken prematurely, but his wife and children has suffered a great loss. He is dead and no amount of remorse, nor plea for leniency based on youthfulness, will ever bring him back to life. I believe that the penalty for this crime must reflect the serious view that Parliament took over loss of human lives when it amended Section 299 of the Criminal Code and fixed the maximum penalty for willful murder as death. The punishment that this Court imposes must also reflect and demonstrate the community's concern against unwanton killing. Earlier on, I alluded to the sanctity of life, and I consider that the punishment for this crime must also be reflective of the importance and sanctity of life that God gave and, which no man has the right to deprive prematurely."

30. The prisoner did not have to kill the deceased after he had raped her if his motive was rape to avenge what her father did to him. He had achieved that by raping her in the bush. But according to him, he was scared and angry when she told him she will report him to her father and that was when he turned on her with viciousness that is found in dangerous and vicious people when he struck her repeatedly on the back of her neck with the blunt side of his bush knife until she fell down dead. This is a very gruesome way of terminating another person's life. What Justice Sevua expressed is echoed in the Supreme Court case of Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137 where life sentences were confirmed against two youthful offenders aged 17 and 19 respectively who were charged with attempted murder. The court there said that some attempted murder cases are potentially far more serious than cases resulting in deaths.

31. So many crimes of violence today are committed by juveniles and youthful offenders that the courts must not be too over-lenient when it comes to sentencing. Where sterner punishment is required the court must not sigh away from their calls of duty to impose the most appropriate punishment deserved by the circumstances of the offence and the offender. In this case apart from his young age of 16, 15 at the time of commission of the crime, there are no exceptional circumstances to warrant sympathy of and leniency from the court in the exercise of its sentencing discretion.

32. For the reasons I have discussed in the judgment of my attitude on the current maximum penalties for wilful murder and until the day comes when life imprisonment means life, in other words, lifetime incarceration of the offender and death penalty is a functional penal sanction, I sentence the prisoner to 60 years imprisonment in hard labour less time spent in custody.

33. This sentence will ensure that he will at least spend a minimum of twenty years in prison before he is eligible for parole release or he will serve at least forty years in gaol before he is discharged from prison on remission with 20 years of his term remitted under the Correctional Services Act for good conduct whilst in prison.

34. Of course parole release can evade him if his institutional discipline record is bad and even remission is withdrawn for the same reason. Both these entitlements are not automatic nor given willy-nilly, they are earned and they are privileges accorded only to those deserving inmates.

Order:

35. You are imprisoned for 60 years less 11 months 3 weeks and 3 days spent in custody awaiting trial and you shall now serve the remaining balance of 59 years and 4 days.

_______________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence