State v Dede [2018] PGNC 356; N7448 (10 September 2018)

N7448

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1720 & 1721 & 1722 & 1723 OF 2016

THE STATE

V

WENDELYNE DEDE & JULIUS DEDE & TONY LELE DEDE & DOMINIC DEDE

Kimbe: Miviri AJ
2018 : 08^th, 9^th, 10^th & 22^nd August

CRIMINAL LAW – Trial-Wilful Murder – S299 CCA – sentence – group attack – broken spine – Section 7 & 8 CCA – parity in sentence – prevalent offence – deterrent & punitive sentence – term of years not death.

Facts

Four Prisoners cut and assaulted the deceased who sustained a broken spinal cord and died as a result. They had intended to kill him and did kill him.

Held

1. Group attack unarmed defenceless victim
2. Violent crimes on the increase.
3. Punitive deterrent sentence

Cases Cited
The State v Ume [2006] PGSC 9; SC 836
The State v Aihi (No 3) [1982] PNGLR 92
The State Lawrence v Simbe [1994] PNGLR 38
The State v Thress Kumbamong [SCRA 29 of 2007] SC1017
The State v Manu Kovi [2005] PGSC 34; SC789
The State v Porewa Wani [1979] PNGLR 593
The State v Bonu & Bonu [1997] PGSC 11; SC528
The State v Gimble [1988-89] PNGLR 271
The State v Amoko [1981] PNGLR 373
The State v Wani [1979] PNGLR 593
The State v Nataemo Wanu [1977] PNGLR 152
The State v Gurua [2002] PGNC 41; N2312

The State v Yokum [2002] PGNC 24; N2337

The State v Sanawi [2010] PGSC 31; SC1076

The State v Ure Hane [1984] PNGLR 105

The State v Nimagi [2004] PGSC 31; SC 741

The State v Barambi [2017] PGNC 234; N6900

The State v Hagei [2005] PGNC 60; N2913

The State v Maraga [2002] PGNC 2; N2433

Urugitaru v Regina [1974] PNGLR 283

The State v Waragu No.3 [2007] PGNC 139; N3282

The State v Ogi [2004] PGNC 20; N2761

The State v Kuvi [2017] PGNC 270; N6934

The State v Max Malala, William Kiu and Alois Bailey [2018] N7445; Cr 247, 248 & 249 of 2017
Counsel:

A. Bray, for the State

J. Woiwoi, for Defendant

SENTENCE

10^th September, 2018

1. MIVIRI AJ: This is the sentence after trial of four men convicted that they wilfully murdered another.

Brief Facts on arraignment

2. The prisoners in company aided and abetted each other on the 22^nd of July 2016 at Mai in Papua New Guinea wilfully murdered Sam Bio. Wendelyn Dede, cut the left leg of Sam Bio falling him to the ground. Julius Dede & Tony Lele Dede called out kill them, kill them, and together with Dominic Dede threw sticks and stones prompting the others accompanying to run away and leaving the deceased. All set upon and attacked him as a result he suffered a broken spine from which he died. They aided abetted each other to kill him and did kill him.
   

Charge

3. Section 299 (1) wilful murder of the Criminal Code is in following terms;
   
   • (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.
     

Maximum Sentence

4. This is the highest homicide offence set by the legislature the will of the people inscribed into law. The maximum sentence for which is the death penalty. Ume v The State [2006] PGSC 9; SC 836 (19 May 2006) now defines that the death penalty is discretionary and not mandatory. Incidentally that is a case that originates from Pangalu Talasea where death was set aside on appeal to life imprisonment, the deceased an elderly woman was raped tortured and killed by the prisoners in revenge for her son who killed another. Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982) is a further confirmation that a worst case of wilful murder will draw out the maximum penalty prescribed of death. In my view it is not by definition of law but dependent on the facts and circumstances given: Lawrence Simbe v State [1994] PNGLR 38; Thress Kumbamong v The State [SCRA 29 of 2007] SC1017. Because to strictly abide and follow will be likened to legislating as observed by the Supreme Court. But that does not mean the sentences of wilful murder will be likened or on par with that of the lesser offences of murder and manslaughter: Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). So for our purposes here the prisoners will be sentenced to a determinate term of imprisonment.
   

Issue

5. What then is that determinate term of imprisonment upon the prisoners?
   
6. Evidence has established that they acted in company against the deceased. They will be sentenced accordingly. Wendelyn Dede cut him on his left leg when he fell down Julius and Tony Lele Dede called out “Kill him, kill him” and they all set upon him ending with a broken spine C2 from which he died. The role each played ultimately leading to the death of the deceased is compound and concerted. There is no distinction one from the other. The cut to the left leg may not have caused the death but it set the stage for the attack that followed suit thereafter. Deceased became defenceless as a result and succumbed. Without it what followed suit would not have come into play. It is therefore an integral part of the same transaction leading to the balance at the end death of the deceased. The uttering of the words kill him kill him is not in isolation or broken in the chain of events leading up to and accompanying no distinction to be made of each of the prisoner’s one from the other. I do not differentiate as in Porewa Wani v The State [1979] PNGLR 593 and Avia Aihi (supra) setting here for prisoners because I find that each were there together acting in concert against a single man. There is no other reasonable hypothesis other than one single person was set up and brutally attacked and sustained the injuries set out. This is no different from Bonu & Bonu v The State [1997] PGSC 11; SC528 (24 July 1997) and the sentence will therefore be equal to all.
   
7. “The general rule is that all active participants in the crime shall be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or a watchman outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated,” Gimble v The State [1988-89] PNGLR 271 at 273.
   
8. Another way of looking at the prisoners is by the term often used in civil law of tort, “Volenti non fit injuria”; He who volunteers suffers no injury. Read with section 24 Intention Motive of the Criminal Code the effect is similar or analogous. You all voluntarily, consciously and knowingly and appreciating well the consequences took it upon yourselves in the exercise of a free will aided and abetted each other to execute the offence. In so doing the full impact of the sentence upon you all will not be smothered in any way or demarcated or differentiated in any way. You are all mentally and intellectually sound in what you set out to do. There is no distinction in the roles that you played nor is there parity: Wani v The State (supra).
   
9. This is not the situation as in State v Nataemo Wanu [1977] PNGLR 152 where there is corroboration of the assertion made by the prisoners that only Wendelyn Dede was responsible for the death of the deceased. All are accomplices in the wilful murder of the deceased there is no independent evidence distinguishing their roles in the crime: Amoko, The State v [1981] PNGLR 373 (4 June 1981). Nor is it likened to the situation in State v Gurua [2002] PGNC 41; N2312 (11 December 2002) where prisoners David Bawai and Tom Gurua Keroi were given distinct sentences from Joseph Nimagi following a trial on murder, where the latter was guarding one of the witnesses in another part where the offence was taking place, unknown to the latter the former two decided to abduct the daughter of the deceased who resisted with them and was shot by them killing him. The court differentiated passing 50 years upon the former and 20 years upon the latter. The converse is State v Yokum [2002] PGNC 24; N2337 (4 December 2002).
   
10. It is appropriate to set out what is parity in the terms of the Supreme Court in Sanawi v The State [2010] PGSC 31 ; SC1076 (29 September 2010)
    

“A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exit in one case at the same time. There could be just one such factor or there could be a combination of them”

11. That is not the case here against all prisoners Wendelyn Dede, Dominic Dede, Julius Dede and Tony Lele Dede therefore the sentence of the court will be the same upon all for the wilful murder of Sam Bio. It is important also to canvas their respective allocutus in this regard. The crime must warrant the penalty not the offender, Ure Hane v The State [1984] PNGLR 105 (28 May 1984) life years was reduced to 15 years imprisonment of a young lawyer in the office of the public prosecutor who repeatedly stabbed his wife with two knives at least thirty times. That was 1984 and the crime of wilful murder continues to spiral out of proportion despite the heavy punitive sentences imposed by this court. It is evident that with the increase in population violent crimes continues to propel out of proportion. Areas where violent crimes were not perpetrated are now home to such violence never seen before in those communities. Safe communities from violence as here have come to be level with other communities that were renowned as violent. The instant case is one such example. Even the amendment of the penalty provision to make the maximum of death has not deterred and controlled.
    
12. These views are not reinventing the wheel as the Supreme Court saw and voiced recently as late and early as 2004 as follows:
    

“The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric. Nimagi v The State [2004] PGSC 31 ; SC 741 (1 April 2004)

13. Good antecedents age personal circumstances outweighed by the gravity of the offence has shown stern sentences imposed regardless as in State v Barambi [2017] PGNC 234; N6900 (15 August 2017) where life years was imposed for wilful murder upon the prisoner for killing his wife over there being no tinned fish to eat with the rice that he had cooked. He tortured her to her eventual death despite her plea not to kill her coupled with another relative witness he persisted to her eventual demise. There must be very good extenuating circumstances to derail the maximum penalty of death as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) where the prisoner raped the victim who tried to run away naked, he chased after her punched her causing her to fall to the ground as she did he picked up a stick hit the back of her head causing internal injuries to the neck and head from which she died. Life imprisonment was imposed for wilful murder because when prisoner was taken to the family of the deceased he was severely beaten up speared with a spear that came out just below his chest. He died his body was wrapped up in plastic to be put in the morgue when he became alive again. He pleaded guilty before the court and the death penalty was envisaged but because of the facts above a life sentence was imposed.
    
14. There are no extenuating circumstances likened here to sway other than what is due to the prisoners in law for the roles that they each played jointly and severely in the eventual death of Sam Bio. Nor is this the same situation as observed in State v Maraga [2002] PGNC 2; N2433 (2 June 2002) so emphasis is placed on differentiating the roles of the prisoners in the sentence passed.
    

Mitigation

15. I take due consideration and account of your respective circumstances pointed out in the presentence report including the means assessment reports in fulfilment of application by defence counsel now presented on all of your behalf. Payment of compensation and restoration of relationship amongst yourselves and the family of the deceased has come about with payment of K5000 and two pigs to the value of K1000 each. In my view this must come from the heart from both sides done compatible with long lasting peace order and lawfulness in the community. Forgiveness is not a mask but is the heart of the dispute. It will add meaning to each of your allocutus which I set out following.
    
16. Dominic Dede, “I would like to apologise to the court the deceased is my nephew. We stayed together very well, ate together, happy together. I want to ask court to give me a term reasonable to serve. I am married with three children the first in grade 8 the second is grade 6 and the third is grade 2. I have an oil palm block when in custody my wife and children will find it hard” He was 37 years old at time of the offence but 39 years old on eve of sentence. A first offender married and with three children and a villager of the catholic faith.
    
17. Julius Dede, “Your honour over this death I have no idea. Whatever they have laid against us in the matter I have no idea over it. The deceased is my nephew. My family with deceased we do not have any grudges his mother is our sister. She is from elder and we are from the younger father. Now because of the death I do not know I want to say sorry to the family for the death. Three of us we did not do anything to our nephew and he died. I have four children and two grand-children. I have an oil palm block two blocks of cocoa and copra. My wife has a problem in her uterus growth therein. She cannot do heavy work. When she does she gets immense pain within after. I look after our small aunty and brother with us. I am disabled my hand is unwell. I ask the court to consider me and have mercy on me. Give me small term and put me on probation and three of us brothers to make reconciliation give us probation to do that to bind our families together again. Right now there are no more grudges. Thank you your honour.” He was 47 years old at the time of the offence 49 years old on eve of sentence a first offender married with children of the Catholic Faith.
    
18. Wendelyn Dede, your honour I want to say sorry for court to accord me time to hear case. I want to say sorry to family of late Sam Bio and mine too. I want to ask court before it sentences me time for my three fathers I will serve their terms. I am already wrong I ask court for mercy upon me. Sentence of my three fathers I will receive and serve. They will go out and do the reconciliation.” He is 20 years old educated to Hoskins Secondary School and Kimbe Grammar School a catholic by faith is the son of the prisoner Julius Dede and a first offender.
    
19. Tony Lele Dede, I have no idea over the death of the deceased. Why would I commit the wrong upon him as he is my real nephew. When they are in need I am with them when they are sick when they have problems I am with them until they are well and leave. I want to say sorry to court that I wasted the time of the court and I want to ask for mercy of court to see and to give me probation so that I will go out and look after my family. My wife is no longer with the children. I have a three male and a female. The first is 20 years old grade 8 and his education is affected. Second is 18 years old grade 5 and since I am in jail he has no more education. The third is the female child she is in grade 3 she is 15 years old she has no education now. The last is 12 years old in grade 1 he too likewise. I have a block each of oil palm coconut and cocoa. The children are now their own father and mother together. Thank you your honour” He was 45 years old at the time of the offence 47 years old eve of sentence married a first offender of the Catholic faith.
    
20. Wendelyn Dede accepts that he committed wrong but goes further and says he will serve the term for his three fathers’ co prisoners. Why else would he serve their sentences if they have done nothing leading to the death of the deceased? They go out and arrange reconciliation of the matter whilst he serves the term for all. That is not the law each will be accountable for his own criminal conduct and will not be distributed or one made to bear responsibility for all in sentence as here requested. He was with them and knows what is due that all are responsible which is corroborative of the assertions by the prosecution for purposes of sentence. Each is an accomplice and assertions made must have independent evidence to verify which is lacking here. Sentence will be equal to all because each played a part to eventual death that befell. Initially the cut by Wendelyn Dede followed by the calling out Kill them Kill them and then the sticks and stones and the chase do not differentiate in the sentence due to all.
    

Aggravation

21. An incapacitating injury disabled the deceased preventing escape and self-preservation when his built and stature is compared to the prisoners he would not have being hurt or endured injury at their hands if he had not being set upon with the element of surprise and ambush by the prisoners. Jointly and severely they set upon him all the others were able to escape because they were not injured but Sam Bio could not because he was cut on his left leg preventing his escape. He was at the mercy of the prisoners. Fundamentally his life was in their hands it was in them whether he lived or died.
    
22. Wilful murder is premeditated killing the result at the end is intended and each prisoner plays a part in the eventual demise of the deceased. All volunteered appreciating understanding the consequences that were eventual at the end and with that knowledge part took to create that joint result the death of Sam Bio. It is not an ordinary matter to stuff out the life of another guaranteed by section 35 of the Constitution. To enshrine in the basic rights of the Constitution means it is a fundamental right. And by that fact protection in law must be accorded the deceased and all others including the prisoners. Deterrence is not personal to the prisoners but to all with similar or like inclinations. Observance and adherence to the sanctity of life must be imbedded in the sentence passed. Close relations have killed and will continue to kill some instances set out above. The Courts have a duty to protect lives given the currency of the prevalence of the offence here and country wide. Stern punitive and deterrent sentences must be passed to reinforce these fundamentals. And the facts and the circumstances underlie here. There are no extenuating facts and circumstances apparent or identifiable to deviate other than what the law calls here. A proportionate sentence against all prisoners equal to the offence of wilful murder. In this regard there must be sense of justice in the sentence passed discriminating must be within law backed by the facts and circumstances. Which isn’t the case against all prisoners: Urugitaru v Regina [1974] PNGLR 283 (29 November 1974); State v Waragu No.3 [2007] PGNC 139; N3282 (2 February 2007).
    
23. You ambushed the deceased an element of surprise to succumb him and he could not escape by the cut on the leg the others with him ran away leaving him at your mercy. The spine was fractured C2 by the location of the injury the force was specifically directed and applied there to attain death. Because the spinal column protects the cord within the fracture of C2 exposed it so that it severed leading to the death from it. The aggravation outweighs mitigation and the proportioned sentence in the circumstances would be likened to the case of State v Ogi [2004] PGNC 20; N2761 (10 December 2004) as the facts are almost similar to the present case. The prisoners were intoxicated by alcohol and stabbed the deceased repeatedly with a knife into the heart and lung killing him. After trial the court imposed 50 years imprisonment.
    
24. Your case is similar you were not content with a drunken relative you resorted to put him out of his drunken condition forever it would not be erroneous or disproportionate to impose the same sentence taking account of all and that wilful murder is still a very prevalent offence. It was substantial force that broke the spinal C2 leading eventually to death. Ume’s case (supra) eventuates from Pangalu in Talasea, State v Kuvi [2017] PGNC 270; N6934 (21 September 2017) originates from Ganeboku in Talasea, State v Max Malala, William Kiu and Alois Bailey Cr 247, 248 & 249 of 2017 originates from Minda in Talasea where life imprisonment was imposed. It is apparent that the punitive, deterrent and strong sentences that have been imposed by this court do not and have not strengthened the rule of Law. This court will do its duty to impose that heed must be paid to the rule of law and that life is sanctified and is not cheap as depicted. This sentence will bring that clear to all.
    
25. The Sentence of the court upon you Wendelyn Dede, Julius Dede, Tony Lele Dede, and Dominic Dede is 50 years IHL. Any time on remand is deducted forthwith. You will serve the balance in Jail.
    

Ordered accordingly

________________________________________________________________

Public Prosecutor: Lawyer for the State

Emam Lawyers: Lawyer for the Defendant