State v Pritchard [2016] PGNC 15; N6183 (12 February 2016)

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CRIMINAL LAW – Practice and Procedure – Section 299 of the Criminal Code – Sentence for wilful murder – Sentencing considerations on wilful murder – Discretion of the Court to impose lesser sentence than the maximum.

Goli Golu v The State (1979) PNGLR 653
Manu Kovi v The State (2005) SC 789
Nomane v The State (1995) SCR 2/95
State v Bernard Hager (2005) N2913
The State v Tola Kuni (1995) N1359
The State v Yanis Ipiri (2008) N3512
Theresa Kumbamong v The State (2008) SC 1017
The State v Joseph Ulakua (2002) 2240.
Ure Hane v The State (1984) PNGLR 105

Mr D Kuvi, for the State
Mr P Kaluwin, for Taita Pritchard
Mr J Mesa, for James Paru

1. SALIKA DCJ: INTRODUCTION: I convicted the two prisoners after a trial on a charge of wilful murder.

2. On 23 July 2011, Taita picked up James in a motor vehicle at the Sabama bus stop and drove to Konedobu Service Station where Taita gave her mobile phone to James to ring John and tell him to go and get his passport and the passport of his Cambodian girlfriend at Napanapa. James used mobile phone number 72916969 to call John on his mobile phone number 73150122 and John told him he will meet him at Napanapa. Phone records show the call by James was at 10:05 am to John.

3. Taita drove James to Napanapa and dropped him on a location along the Napanapa road. There was no evidence that indeed James had John and his girlfriend's passports with him to deliver to John that morning. Taita drove back towards the city. James waited for John to arrive and at 10.41 am James called John. The phone records show that in the meantime John called his girlfriend at 10.20 am on that day Saturday. At 10.21 John called Raymond Mojica. These calls were verified from the phone records held by Digicel (PNG) and were tendered into evidence.

4. At 10.42 am Taita called from her mobile phone number 73376082 to John's mobile phone number 73150122 but was not answered. She then called mobile phone number 72916969 from her mobile phone number 73376082. Mobile phone 72916969 was then with James which he used to call John from Konedobu and from Napanapa. John's mobile phone records show that he called 72916969 firstly at 10.39 am, 10.49 am, and 10.56 am and at 11.08 am. Raymond Mojica called John at 11.09 am. That was the last anyone heard from John.

5. The evidence of James Paru is that the white man came out of his vehicle and he (James) told him to turn around but James said the white man tried to draw his pistol and he shot John and John fell. James got into John's vehicle and drove to Koukou where he abandoned John's vehicle and started walking from there. He said Taita had gone to Napanapa looking for him and on her way back saw him walking on the road and picked him up and took him to Sabama where James lived.

6. The mobile phone records of John's mobile phone number shows that a text message was sent from John's number 73150122 to Taita's mobile phone number 73376082 at 12.35 pm on that day 23 July 2011. By 12.35 pm John was already dead. James picked up John's mobile phone from John's car and gave it to Taita at Koukou. Taita was the one who sent the text message from John's phone to herself in the hope that she would be believed that it was John who sent the text message. Her attempt to deceive the police and John's friends did not work out. Mobile phone records of John shows that at 2.00 pm Raymond Mojica called John's mobile phone and someone picked it up but no one spoke. Raymond called John's mobile phone and again someone picked it up but no one spoke. Was it Taita who picked up the phone calls from Raymond? There is a strong suggestion that it was her.

8. Police pieced together all the various pieces of evidence which led to the arrest and charging of both James and Taita. The mobile phone records from Taita's mobile phones 73376082 and 72916969 and the mobile phone number of John 73150122 assisted police very much in apprehending both James and Taita and bringing them to justice. The mobile phone records did assist this court in coming to the conclusion it made about John's death.

9. After convicting the two, the Court has the difficult task of determining what sentence to impose on the two prisoners. Sentencing is not an easy task. The Courts are faced with weighing up all the factors and to try to come to a balanced decision on sentence.

10. Section 299(2) of the Criminal Code says that a person who commits wilful murder shall be liable to be sentenced to death. With respect the words "shall be liable to be sentenced to death" to me means that the Court has a discretion to sentence from a lower scale up to the death sentence. In any case Section 19(aa) of the Criminal Code makes the sentence of death discretionary. Section 19(aa) says:

"S19 (aa) – a person liable to death may be sentenced to imprisonment for life or for any shorter term."

11. This Court is reminded by the Supreme Court in Goli Golu v The State (1979) PNGLR 653 that:

"Wilful murder has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why in most jurisdictions it carries a fixed penalty – sometimes death but frequently life imprisonment."

In some cases of wilful murder sentences are quite high depending on the circumstances of each case. See Nomane v The State (1995) SCR 2/95 (30 years); The State v Tola Kuni (1995) N1359, (22 years).

12. In Ure Hane v The State (1984) PNGLR 105, Bredmeyer J set out some non exhaustive list of the most serious instances of wilful murder. His list consists of:

13. At the time of the Ure Hane decision, the maximum sentence for wilful murder was life imprisonment. Parliament amended the penalty for wilful murder to death in around 1999.

14. The Supreme Court in Manu Kovi v The State (2005) SC 789 set various guide lines to be taken into consideration in order for the Court to determine the appropriate sentence for wilful murder offences:

No.	Description	Details	Tariff
1.	Plea - Ordinary cases. - Mitigating factors with no aggravating factors.	No weapons used. - Little or no pre-meditation or pre-planning. - Minimum force used. - Absence of strong intent to kill.	– 20 years.
2.	Trial or Plea - Mitigating factors with aggravating factors.	- Pre-planned. Vicious attack. - Weapons used. - Strong desire to kill.	20 – 30 years.
3.	Trial or Plea - Special Aggravating factors. - Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	- Brutal killing. Killing in cold blood. - Killing of innocent, defenceless or harmless person. - Dangerous or offensive weapons used. - Killing accompanied by other serious offence. Victim young or old. - Pre-planned and pre-meditated. - Strong desire to kill.	Life imprisonment.
4.	Worst Case – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	No details provided.	Death.

15. A year later the Supreme Court in Steven Loke Ume and Others v The State (2006) SC 836 listed 8 categories where it said the Death Penalty maybe imposed by the Court when dealing with Wilful Murder cases. They are:

16. In this case none of the above considerations are present. However in the chart drawn up in the Manu Kovi case, the above factors could be slotted in category 4 box of that case.

17. The circumstances of the killing in this case, as found on the evidence is that Taita wanted John out of the way because it became obvious through John's conduct when he decided to bring a new girl into his life. This was after John told her to sell her house in Australia and after she had invested a lot of her money on him and after John had asked to marry her. It was obvious she was not going to get her money she had loaned him and she was not going to have John as a husband. The case of Ure Hane v The State (supra) was a case of "if I cannot have you, nobody else will". One could say the same in this case. Taita realised she was not going to have John. John brought a Cambodian girl into his life. John was slipping away from Taita. Jealousy and frustrations crept in to take control of Taita. That was the end of Taita and John. It was now John and the Cambodian girl. Taita's investment in John of her money, her time and her love all evaporated like the morning fog into thin air. Taita then out of jealousy and frustration devised a deadly plan to "if I cannot have you, nobody else will" and take her revenge.

18. This therefore, was a planned killing but the killer was never going to avoid detection. This was a silly plan and destined to fail. As a result Taita has lost all her investments in John himself and also in terms of money, love and freedom. John has lost his life forever. Taita will loose her freedom for a long time.

19. Wilful murder is a serious crime of violence and is the most serious offence a person can be ever charged with as it involves pre-planning to kill a targeted person, intention to kill that person, and it involves putting that plan and intention into action and the end result is achieved. That is why it is the most serious offence.

"There are so many wanton killings happening in the country at will as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent."

21. With respect I agree and endorse the observations of the National Court in that case. I make the same observations in this case that this was a pre mediated and cold blooded murder with no respect for the sanctity of human life. There was no need for the killing in this case. Surely there were and are plenty of eligible men both black and white who could fill the gap John vacated. The Royal Yacht Club of Port Moresby was a good hunting ground for that. She could have taken John to Court to recover any money John owed her.

22. Life is lived only once. It is therefore very precious. The sanctity and value of a human life is more precious than money, gold or wealth and the Courts do take a serious approach to treating life as sacred. No amount of compensation will ever restore a person's life See (The State v Yanis Ipiri (2008) N3512).

23. The Supreme Court in (Manu Kovi v The State (2005) SC 789) alluded to earlier laid down sentencing guidelines in relation to homicide cases. In 2008 another Supreme Court in Thress Kumbamong v The State (2008) SC 1017 deviated from the Manu Kovi case saying that the Manu Kovi case attempts to lock the National Court to the sentencing ranges it suggested but said the National Court should have total discretion in determining the appropriate sentence.

24. While the Supreme Court in the Manu Kovi case has suggested the sentencing guide in homicide cases, the National Court still has and should have total discretion in what sentence to impose including the maximum sentence. In that regard Parliament when legislating for the maximum death sentence in wilful murder cases did not make a mistake. Parliament deliberately set the death penalty as the maximum penalty because for someone to end the life of another person wilfully and unlawfully is a serious crime. See The State v Joseph Ulakua (2002) N2240. Parliament, however, also did not make a mistake when it allowed the Court to continue to have discretion in sentencing offenders convicted of wilful murder.

25. James Paru is 54 years old and lived at Section 39 Allotment 23 Sabama at the time of the commission of this crime. He has lived all his life at this address. He is married and has 4 grown up children. He was educated to Grade 10 at the Kilakila High School. He joined the PNG Defence Force in 1980. As a soldier he served in the Delta Company in Moem Barracks in the infantry rising to the rank of Lance Corporal. He was trained in anti guerrilla warfare. He became an instructor at the Officer Training College at Igam Barracks in Lae. He also served at Charlie Company at the PNGDF Taurama Barracks. He also served in the Bougainville conflict. He resigned from the PNG Defence force in 1992.

27. In another attempt to downplay his part in the killing of John Hulse at the scene of the crime the probation reports records the following:

"The deceased went to the side of the bush, relieved himself. .... the deceased pulled his zip up and cocked the pistol and said "Where is my visa, and who is you here (sic)".

28. This part of his story was never before the Court. James Paru also in the same report said John Hulse fired his pistol first. This is a new invention. This account is different from the confessional statement that is tendered into evidence. The version in the Confessional Statement is the one accepted by the Court as it went through the examination and cross-examination processes.

29. Taita is 48 years old and lives at Section 41 Allotment 42 Logohu Street, East Boroko, National Capital District. She is a widow with 2 daughters. Both her daughters are citizens of Australia and live their own lives. She and her late husband Christopher Pritchard married in 1986 and he died in March 2006 of a heart attack. Her late husband was from the United Kingdom and worked as a security manager with Oil Search Ltd in PNG. He resigned his job in PNG and settled his family in Australia and started a family business there.

30. Taita finished her Grade 10 at the Badihagwa High School in 1982. In November 1983 she was employed by Crown Plaza Hotel as a waiter where she met her late husband. In December 1986 she married her late husband and went on to work for Cardno and Davies Engineering located in Port Moresby. In 1987 she moved to Australia and got a job with Channel 9 in the reception and administration section in Townsville.

31. The family then moved to Brisbane in 1990. She attended TAFE courses in Brisbane in order to secure a job in Australia and completed them successfully. She also did a Nursing Course in 2005-2006. She was working for Lutheran Zion Nursing Home Age Care Centre as an Assistant in Nursing. From 2011 up to now she has been unemployed.

33. Considering all the circumstances of this case, the mitigating factors and the extenuating factors but at the same time the seriousness of the wilful murder, I sentence Taita Pritchard to 30 years imprisonment in hard labour and James Paru to 30 years imprisonment in hard labour.

34. Time spent in custody is taken off from the 30 years respectively. For Taita Pritchard 3 months are taken off. The balance she will serve is 29 years and 9 months.

35. For James Paru 3 months are taken off. The balance he will serve is 29 years and 9 months.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant

National Court of Papua New Guinea

State v Pritchard [2016] PGNC 15; N6183 (12 February 2016)