State v Rioke (No. 2) [2016] PGNC 103; N6287 (10 May 2016)

N6287

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1888 OF 2015

THE STATE

V

PHILIP RIOKE (NO.2)

Palmalmal & Kokopo: Lenalia, J.

2016: 6^th, 9th, 11^th, 12^th, 14^th, April& 3^rd& 10^th May

CRIMINAL LAW– Aiding suicide – Procuring another person to kill herself – Sentence after finding of guilty – Criminal Code s.310 (a).

CRIMINAL LAW – Procuring the victim being biological sister of accused –
Elements of the charge established accused procured the victim.

CRIMINAL LAW & PRACTICE – Sentence on crimes of procurement – Appropriate penalty term of imprisonment considered equivalent sentences imposed for offences of murder.

Held:

1. The crime of aiding a person to commit suicide is serious as any

other homicide crimes as reflected by the maximum penalty of

life imprisonment as provided for under s.310, Criminal Code.

2. In order to find an accused guilty of aiding another person to

commit suicide, the State must prove that the offender actually

did something or committed acts by words or actions which

Intimidated, insulted or caused a victim to commit suicide.

3. The accused found guilty and convicted of procuring the death of his biological sister.
   

Cases cited.

Goli Golu v The State [1979] PNGLR, 653
Jack Tanga v The State (1999) SC 602
Kesino Apo v The State [1988] PNGLR 188
Lawrence Simbe-v-The State [1994] PNGLR 38
Manu Kovi v The State (31.5.05) SC789
Rex Lialu v The State [1990] PNGLR 487
Ure Hane v The State [1984] PNGLR 105
The State-v-Arua Maraga Hariki (2003) N2332
The State v David Yakuye Daniel (No.2) (2005) N2890
The State v Isaac Nickson & 2 Others (14.9.07) Cr.No.1076 of 2005

Legislation:

Counsel:

Mr. L. Rangan, for State.
Ms. J. M. Ainui, for the Accused

10^th May, 2016

1. LENALIA, J: The prisoner was found guilty of one count of aiding suicide against s.310 (a) of the Criminal Code. The evidence upon which he was found guilty is that the prisoner intimidated, insulted or persistently persuaded the victim of this case, Clara Remo to commit suicide.

2. The evidence established in the tendered statements revealed that the prisoner behaved suspiciously to his biological sister prior to the date on which she took her life namely 27^th March 2015. The crime was committed at Open Bay Logging Camp, Lasul Bay Local Level Government, Gazelle District, E. N. B. Province. On the above date, the prisoner uttered words towards the victim like as though she was not his biological sister.

3. According to evidence tendered, shows that the accused harassed and pestered or intimidated the deceased by assaulting her, and using insulting words to her such as “ating yupla plan long kam bung long hia, hah” (See Qs.22 & 25 in the ROI Ex.”8” & “8a” and their answers). The prisoner made those comments when he saw the victim and Ben Kumbu walking along the road toward the camp site. Or phrase like “yu raon we na yu kam”? (See Ex. “14” statement of Aguna Clara). The prisoner admitted in the record of interview that because of what he did to the victim the words he uttered toward Clara and Ben upset her then she dropped two baskets of bananas on the ground and she fled into the bush to collect poisonous bush ropes.

4. After he had seen the victim came back to the main road with the poisonous ropes, the court found that, he did nothing to stop her from committing suicide. (For detail examination of the evidence, see judgment on the ruling on verdict dated 11^th April 2016 from paragraph 7 to 34).

Addresses on Sentence

5. On his allocutus, the prisoner said, he is sorry for what he did to the victim and asked for leniency.

6. Ms. Ainui submitted that, this case involved aiding a person to commit suicide and the court should consider the fact that, the prisoner did not do any physical harm to the victim. Counsel asked the court to consider, the offender has no criminal record and the court should consider a term of years on sentence. Manu Kovi v The State (31.5.05) SC789

7. Mr. Rangan, counsel representing the State made submission on the serious nature of the offence of procuring the death of the victim Clara Remo. He argued that, the fact that the offender used no weapons is beside the point as the action by the prisoner caused the victim to take her own life. Counsel submitted that, this is because, the victim was the prisoner’s biological sister, he pestered her and uttered words to her and the man who was with her and she decided to take her life away.

Application of Law

8. The crime of aiding suicide is defined by s.310 (a) (b) (c) of the Criminal Code which states:

“A person who –

(a) Procures another to kill himself; or
(b) Counsels another to kill himself and so induces him to do so; or
(c) Aids another to kill himself, is guilty of the crime.

Penalty: Subject to Section 19, imprisonment for life”.

9. This crime is one of those offences which are rarely committed. The court considers the action by the prisoner in how he approached his biological sister and the fact that, the offender had approached the victim contrary to common sense when he openly assaulted his sister and humiliated her publicly by using language that was or may have been threatening or otherwise insulting which caused Clara to commit suicide.

10. The court is faced with the difficulty of no case law authorities to rely on for sentencing principle in relation to aiding suicide. Counsels did not assist the court by referring to any cases which similar circumstances. What is clear though is that the maximum penalty for the crime of aiding suicide is life imprisonment.

11. Due to the serious nature of this crime, it carries the maximum life incarceration similar to crimes of murder, infanticide, (if indicted for willful murder, murder or manslaughter), manslaughter, and killing on provocation, attempted murder, accessory after the fact for murder and genocide. (See Sections 300, 301, 302, 303, 304, 312, 313A and 314 of the Criminal Code).

12. The offence of procuring another person to commit suicide is serious just like any homicide cases. This is reflected by the maximum punishment being the prescribed at life imprisonment. This is the reflection of the value of life the society places on human life. Once a life is lost, it is forever gone. Taking a life away is totally condemned by our societies and that is the reflection of what is prescribed by provisions in the Criminal Code some of which I have cited above.

13. I acknowledge addresses by both counsels on the seriousness of the offence of aiding suicide. The offence of procuring another person to commit suicide is rarely used by the prosecution. But the maximum penalty for this crime shows that this is a serious crime just like any other homicide cases. I will soon refer to some cases which reflect and illustrate how serious the offences of homicide are and the sentencing trends taken by the National Court and Supreme Court appeals where offenders have appealed against sentences imposed on them for homicide crimes.

14. This approach reflects a signal that there is so much killings in all communities in the country. Due to the high rate of homicide cases, sentences for the offence of willful murder, murder, manslaughter and other similar crimes, something ought to be done to eliminate such crimes.

15. 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. The basic principle is that the sanctity and value of a human life is more precious and valuable than anything else must be given prominence by the Courts. That is why the Parliament fixed the maximum of life imprisonment for procuring another person to commit suicide.

16. All human beings have the right to the protection of life pursuant to s.35 of the Constitution. As such nobody must deprive anyone of his or her life because it is protected by law in the above section. The life of the victim in this case has now been lost forever. She was entitled to the protection of the law envisaged by s.37 of the Constitution. No money nor anything done under the sun, and not even anything paid in the form of compensation or even any remorse would assist to restore or revive a life that has been lost. Once it is lost, it is lost forever.

17. To illustrate what I have said above, I refer to some cases which discuss the issue on homicide cases. Like in Manu Kovi v The State (31.5.07) SC789, the Supreme Court comprising of Injia, DCJ, (as he then was) Lenalia, & Lay, JJ adopted part of the guidelines set in Simon Kama v The State (2004) SC 740 and suggested four categories at page 13-14 of the judgment. I quote such passage in the following terms:

“Since Laura (No. 2), the Courts have repeatedly warned that sentences for murder will increase and imposed sentences beyond the tariff suggested in that case. In our view, the tariff for murder after Laura (No. 2) should no doubt be adjusted upwards to reflect the increase in murder sentences and manslaughter sentences as noted in Anna Max Marangi.

Using the categories set out in Laura (No. 2), as a guide, we suggest the following tariff:

1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years16. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc .These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.”

18. Concern by various Supreme Court benches on crimes of willful murder, murder and manslaughter cases are an indication that the homicide crimes are so prevalent. The situation is the same with other homicide cases. Taking a life of another person away is not a simple thing. Judges of this Court have repeatedly warned that, the penalty of life imprisonment speaks for itself and it reflects the serious view taken by the legislators when fixing the maximum penalty for homicide crimes as the one before this court.

19. The approach to be adopted in determining the punishment was set out in Rex Lialu v The State [1990] PNGLR 487 where the Supreme said, the trial Judge is to have regard to the aggregate effect of all relevant considerations on factors which aggravate or mitigate the seriousness of the offence and then determine what penalty should be imposed. (See also Jack Tanga v The State (1999) SC 602).

20. I refer to two cases of murder and the penalties given as manslaughter. In The State v David Yakuye Daniel (No.2) (2005) N2890, a case in West New Britain, where the offender was convicted of the stabbing of his wife, whom he suspected of having an affair with another man. There was evidence that the prisoner had, prior to the incident in which he killed his wife, attempted to sort out their marital problems peacefully. Defences of self-defence and provocation were rejected during the trial Judge. The offender was sentenced to 25 years imprisonment for the crime of murder.

21. In The State v Isaac Nickson & 2 Others (14.9.07) Cr.No.1076 of 2005 unreported judgment, the co-accused were charged with murder on a sorcery related killing in inland Baining. They pleaded guilty before this Court. They were sentenced to 15 years imprisonment. That was a killing in the inland Baining where the three accused had suspected the victim of performing sorcery on their dead relative. They went to his house at between 9 and 10 pm. They woke him up and as he walked out through the door, one of them pushed a long bush knife through his belly. He instantly died.

22. In The State v Noel Tony (18.8.2015) Cr.No.1109 of 2014 a case in Kavieng, the offender was charged for the offence of manslaughter under s.302 of the Criminal Code. The offender and the deceased were drinking together with other friends near the PNG Power compound. While they were drinking the first coffee rum bottle, the prisoner walked up to where a full coffee rum bottle was placed and got that full coffee rum and walked away with it. An argument erupted and the prisoner got out his pocket knife and during the course of the struggle, the victim fell onto the knife. He died the same date. He was sentenced to 12 years.

23. I have considered the accused comments on his last say. I consider counsels addresses on mitigations and aggravations. The killing in the instant case was committed in a home environment. Given the fact that the prisoner has lost his biological sister, I take this factor into consideration of what ought to be an appropriate penalty. That is to say the prisoner has lost the sister. This loss affected all their love ones as well: Kesino Apo v The State [1988] PNGLR 182.

24. I consider the fact that the loss of life on the instant case was not from an ordinary cause. Her demise was caused by the prisoner’s jealousy as the court found he had previously been trying to have incestuous relationship with the victim but she had consistently refused him. On the occasion the victim took her life away, the offender met the victim with her boyfriend on the road and openly got furious with the victim and her boy-friend.

25. He inquired if the two of them had conferred to meet where the offender saw them. What the prisoner did to the victim may have been contrary to their custom. The sister got so upset and threw the baskets of bananas on the ground and rushed into the bushes to collect poisonous rope to chew. The court found the offender procured the victim to commit suicide.

26. I consider counsels submission and the offender’s statement on his last say. In the circumstances of this case, I consider the appropriate penalty should be 18 years imprisonment. He is sentenced to 18 years imprisonment. The custody period shall be deducted and he will serve the balance.

________________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused