State v Malala [2018] PGNC 357; N7445 (10 September 2018)

N7445

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 247 & 248 & 249 OF 2017

THE STATE

V

MAX MALALA & WILLIAM KIU & ALOIS BAILEY

Kimbe: Miviri AJ
2018 : 13^th, 14^th & 23^rd August

CRIMINAL LAW – Trial– Wilful Murder – S299 (1) CCA – deceased cut with bush knives –mob attack – defenceless – no justification for attack – prevalence of offence – sanctity of life – section 35 right to life – repeated persisted attack – deterrent punitive sentence .

Facts

Prisoners cut up the deceased amputating his left hand and right leg including his head and his other leg and hand causing massive bleeding from which he died. They had intended to kill him and did kill him.

Held

1. Unarmed deceased left hand amputated.
2. Chased in a group all armed with bush knives
3. Four limbs and head of deceased seriously cut
4. Over canoe not damaged
5. Prevalent offence
6. Sanctity of life.
7. Strong deterrent and punitive sentence.

Cases sited

The State v Ume [2006] PGSC 9; SC836

The State v Aihi (No 3)[1982] PNGLR 92

The State v Poroli [2004] PGNC 113; N2655

The State v Ben Simakot Simbu (No.2)[2004] N2548

The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241

The State v Hagena [2017] PGSC 55; SC1659

The State v Api [2001] PGSC 2; SC684

The State v Mongi [2007] PGNC 135; N3259

The State v Bonu & Bonu [1997] PGSC 11; SC528

The State v Karawa [2004] PGNC 137; N2631

The State v Arua Maraga Hariki (No 2)[2003] PGNC 140; N2332 Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397

The State v Manu Kovi [2005] PGSC 789

The State v Porewa Wani [1979] PNGLR 593

The State v Nimagi [2004] PGSC 31; SC741

The State v Nataemo Wanu [1977] PNGLR 152

The State v Amoko, [1981] PNGLR 373

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 Erebebe [2013] PGSC 1228

The State v Bonu & Bonu [1997] PGSC 11; SC528

The State v Kuvi [2017] PGNC 270; N6934

The State v Hagei [2005] PGNC 60; N2913

Counsel:
A, Bray, for the State

E, Yavisa, for Defendant

SENTENCE

10^th September, 2018

1. MIVIRI AJ: This is the sentence of three men who barbarically cut up another because he had hit their canoe.
   

Short facts

2. On the 12^th November 2016 at 6.30pm Cletus Kito Mane was savagely and brutally cut up with bush knives on all his limbs and head. His left arm and right leg were amputated and his skull was fractured and cut. He also suffered cuts to his left leg and right arm. He died as a result of massive blood loss. The three prisoners aided and abetted each other. They intended to kill him and did kill him.
   

Charge

3. The State indicted with Wilful Murder pursuant to Section 299 (1) as follows ;
   
   • (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.
     
4. The maximum prescribed penalty of wilful murder befalling the prisoners is death. It is the ultimate penalty and would remain so but for the decision of the Supreme Court in Ume v The State [2006] PGSC 9; SC 836 (19 May 2006) where discretion is now conferred. So that it would be a calculation of the facts circumstances of each particular case to arrive at a worst case scenario to draw the ultimate penalty, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). What is undisputedly settled is that a death is a death be it derived from the savage and brutal use of bush knives as is the case here, or by a piece of iron or wood or a gun to the head causing death. The appropriate and proportionate penalty determined will be a balancing of all these facts. In this regard it is tangible to be directed to decided cases, for example State v Poroli [2004] PGNC 113; N2655 (25 August 2004) the maximum penalty of death fell into place against the prisoner who had the deceased policeman say his last prayers before shooting him in the head with a gun and throwing the body down a deep ravine. In another instant State v Ben Simakot Simbu (No.2) [2004] N2548, the deceased was raped and killed for refusing to give to the prisoner a chicken on credit and her innocent young infant was also killed with the same iron on his head. Multiple deaths attracted the death penalty upon the prisoner. It is now entrenched that multiple deaths will draw out the death penalty, State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 (4 April 2011) 8 persons were wilfully murdered on a boat by the five prisoners. Each of them was sentenced to 8 death sentences each for the 8 wilful murders committed of the eight deceased. Which has now being confirmed on appeal to the Supreme Court by the prisoners in Hagena v The State [2017] PGSC 55; SC1659 (11 December 2017). The death penalty has now being confirmed appropriate. When the level of violence is high and extreme to terminate deliberately the life of another the penalty is the ultimate of death. Measured from that given the facts of this case and its circumstance will draw more so including next most serious penalty of life imprisonment both not disproportionate given. And the Supreme Court has advised the National Court in given cases to so step.
   
5. The Supreme Court has voiced: “Nevertheless, 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,” Api v The State [2001] PGSC 2; SC684 (29 August 2001).
   
6. This observation of the Supreme Court is applicable here, given the very high incidents of this offence perpetrated in the Talasea area of this Province. It seems that life has become cheap and the dictate of the Constitution under section 35 Right to life has become valueless. Sanctity of life is no longer there despite the stringent punitive and strong sentences that this court has handed down. Resorting to bush knives and weapons at ease without regard for the law has become a norm in everyday life in that particular part of this province. And this is despite the affluent draw in strong Christian values and teachings deeply rooted there. The present case is no exception the prisoners are of the Catholic Faith and no doubt are versed that, Thou Shall Not Kill the sixth Commandment of GOD. It is enforced and is the basis of the intent of the people through parliament amending life imprisonment to death addressing and drawing consistency of the prevalence of this offence which effect is to defy the sanctity of life. It is the most serious of the homicide offences because not only is there killing but it is intended. The gruesome horrendous injuries sustained by Cletus Kito Mane are overt of the prisoner’s intent to exterminate his life out of his mortal body. Life is lived only once and is therefore sanctified. As a Christian nation by our Constitution Life is given by GOD not men. Talasea and West New Britain Province is predominantly Catholic Christian and no doubt the Prisoners are versed, Thou shall not kill the 6^th Commandment elementary to every Christian. No man has ever and will return from the grave once terminated by death Cletus Kito Mane is no different. By operation of law either after due service of the term imposed or by eligibility to parole the prisoners will return eventually to their families. The same cannot be said of Cletus Kito Mane. He is not likened to the case of the Soldier who came to arrest Christ and was cut in the ear by the sword of Saint Peter only to be given back it as if nothing had happened to him.
   
7. The payment of shell money or compensation will not revive him to life. And its payment must not be court imposed but out of the heart to see goodness peace tranquillity in the village Minda Talasea. It would bear heavily in favour of the prisoners where it is immediate and not inspired on the eve of sentence or after process by Community Based Corrections. It would be a lot different in the case of a guilty plea to the matter. Because it is acceptance of wrong and intent to make right wrong committed. There is no disclosure to this effect by the presentence and means assessment reports that have been tendered into court on behalf of each of the prisoners. By this reports any alternatives to imprisonment is faded out with the gravity seriousness and horrendous nature of the facts depicted out. The photographs of the deceased show the gruesome nature of the attack upon him. He became nothing less than a human being. Treatment of a fellow human being let a long a relative in this regard leaves nothing but the full force of the law to eradicate deter and punish any wrong doer as is the case of the prisoners. There would be serious error of law if it was not heeded to.
   
8. It is fair and just to consider like cases and sentence drawn invoking consistency and compatibility as State v Mongi [2007] PGNC 135; N3259 (12 December 2007), The Buka National Court imposed the death penalty upon the prisoner who pleaded guilty to wilful Murder. He had consumed a roll of marijuana saw the victim 7 years old collecting nuts and followed her. He grabbed her led her to a cliff punched her concussed her and then led her to another area where he punched her but missed and hit a rock. He tried a second time but missed hitting a rock incensed twisted her neck killing her instantly. An innocent child who did nothing to be killed who had a long life ahead brutally ended. Likened to this innocent child is Cletus Kito Mane who had no weapon to defend himself he was outnumbered and did not have a chance of survival. Given the evidence that he was rolling raw tobacco to smoke and was in no way threatening nor was he able to defend himself from the knife thrown at his hand by the prisoner Max Malala. Not only were the prisoners content with this one cut but pursued and persisted until he was bleeding heavily and left to die twisting and turning in the sand as if to keep the last of his blood and life in him. Prisoners were adamant and persistent chasing after him armed with bush knives attacking him 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 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. Category 3 of Manu Kovi v The State [2005] PGSC 789 (31 May 2005) is depicted by these facts life imprisonment would be proportionate given.
   
9. In State v Karawa [2004] PGNC 137; N2631 (2 September 2004) prisoner was a first time offender advanced in age who had cut his brother twice with a bush knife killing him over dispute over land. The court imposed 20 years for wilful murder. The facts there do not par with the present and therefore sentence will reflect the difference. In the State v Arua Maraga Hariki (No 2)[2003] PGNC 140; N2332 (3 February 2003) Prisoner had strangled both deceased after they had consumed alcohol with him and then disposed off both bodies along a stretch of the Papa Lealea road in Port Moresby. The court imposed life years for the first and the death penalty for the second. The present case would be on par with the first wilful murder and a sentence analogous would be proportionate.
   
10. The prisoners depict very serious and aggravated features that drew out like Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014) where the court confirmed the sentence of wilful murder of life imprisonment where a group armed with all sorts of weapons shot killed and chopped up the deceased in front of his family over land dispute. You three prisoners were accompanied by three others also not before the court. His last moments in life to cling to his life twisting and turning in the sand from a 15cm cut to his skull across the parietal region across the left ear, this was a fracture through the skull, his left leg distal one third fracture, right leg posterior midshaft, and left wrist amputation, right elbow joint fracture, left arm anterior knife wound show your concerted and joint using the bush knives you had to eliminate him.
    
11. Cletus Kito Mane was 26 years old weighing 60 kilogram and 165cm tall. His cause of death was acute blood loss multiple knife wounds to skull and all four limbs. He was murdered. The photos exhibit S3(1) to (7) showed a well built man who could have been no match for the prisoner Max Leris Malala had he acted alone and without any weapon. Comparably he is well built even to the size of the prisoner William Kiu and Alois Bailey. It is clear that he was attacked when he was not suspecting it. According to the evidence of Dominic Ngava and Gerard Gorea he was rolling his smoke and therefore was not expecting the attack.
    
12. What is exposed here is an unspeakable level of violence inhuman, barbaric, savage, and brutal of such magnitude perpetrated by the prisoners upon the deceased. For the bush knife to be able to cut through bone and to break the bone and go through skin underlying to completely cut it from end to end was force of such magnitude compared to nothing less than overt of very strong persistent intent to kill and exterminate by all means. Cletus Kito Mane died a very violent death in his own village at the hands of the prisoners Max Malala, William Kiu and Alois Bailey accompanied by others also armed with bush knives.
    

Mitigation

13. Alois Bailey is 37 years old of the Catholic faith from Minda Talasea with no previous conviction known to the law. He was educated to grade 10 in 1996 at Kimbe High School. He has employment history of 5 years with a local company. He is married with three children. He manages a local business group. The probation report depicts that his 23 foot banana boat and a 40 horse power outboard motor have been taken by the deceased family who are using it to ferry passengers and to make money since the commission of the offence. Including materials of his fermentary with cocoa beans within. This is without any independent evidence verifying weighed in consideration of sentence. There is no material that real peace and reconciliation has taken place since. Any non-custodial sentence would have serious repercussion to law and order and would not be on par with similar offences, Manu Kovi (supra) category 3 will be applicable and compatible here given the facts set out above including Section 7 and 8 set out by the facts consistent with Max Malala who assaulted and cut the deceased initially in the presence of the prisoners William Kiu and Alois Bailey who with others also armed with bush knives including themselves pursued to eventually leave him dead with multiple cuts all over the body, Porewa Wani v The State [1979] PNGLR 593.
    
14. Max Malala is 21 years old from Minda Talasea single with no prior convictions known to the law. He completed grade 10 Kimbe High School 2010 with no employment history. He was affected by voluntary consumption of alcohol at the time of the offence. He cut the deceased initially set the crime in motion with the others pursuing and leaving the deceased bleeding to his death. He too is of the Catholic Faith. In sentencing he will not be treated differently from the other prisoners all prisoners aided and abetted each other in the cutting of the deceased and his subsequent death emanating. All pursued the deceased after he was grievously wounded and left him bleeding to his death, Nimagi v The State [2004] PGSC 31; SC741 (31 April 2004). There is no peace and reconciliation in the matter it would be disproportion to impose a non-custodial sentence given all set out above. He had prior good record to this day which does not sway the gravity of the offence nor does it outweigh the aggravation set out above.
    
15. William Kiu is 43 years old from Minda village Talasea also a Catholic by faith has four children ages 5 to 13 from his marriage. He has formal education up to grade 6 at Bagum Community School with no record of employment. He is a first offender and was in the group that chased the deceased onto where he was later found dead with multiple knife wounds from which he bled extensively and died. He too has no substantive material to sway otherwise than a custodial term in jail. The aggravation outweighs the mitigation in the penalty considered in his case.
    

Issue

16. What is an appropriate sentence given for the three prisoners?
    
17. The situation in State v Nataemo Wanu [1977] PNGLR 152 is applicable here because all three prisoners are accomplices in the wilful murder of the deceased there is no independent evidence to set one apart from the other 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 for murder. The converse is State v Yokum [2002] PGNC 24; N2337 (4 December 2002) also a murder case.
    
18. There is in-effect no parity in sentence in accordance with Sanawi v The State [2010] PGSC 31 ; SC1076 (29 September 2010), where principles of parity are set out as follows; “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” All three prisoners equally took part in the offence one does not stand out or is lead in the offence all acted together in the outcome death of the deceased wilfully by their acts together. There is no parity in the sentence against.
    
19. Their violent behaviour must meet what is due upon. Hagena (supra) is bold that the Courts will not tolerate extreme violence and determination to terminate a life, Erebebe v The State [2013] PGSC 1228 (2 May 2013) regard this to be clear cut by the imposition of both the life imprisonment as well as the death penalties. There were 9 counts of wilful murder. Here is a single count perpetrated by the prisoners in a mob against the lone deceased with bush knives. When one is faced with deadly weapons in a pack by his assailants by nature he has no room to survive as was the case here. He was set up and doomed when one of his dormant hands was amputated initially and then set up by the pack in the manner set out by the evidence on trial. All Prisoners were identified pursuing the deceased with that injury and when discovered had been all cut up as set out. No one had motive on that night against him except the prisoners Max Malala, William Kiu and Alois Bailey and who were seen pursuing him armed with bush knives. They acted in concert against a single man brutally attacked and sustained the injuries set out, this is no different from Bonu & Bonu (supra) and the sentence will therefore be equal to all.
    
20. The Courts will stamp out extreme violence total disrespect for the sanctity of life and give effect to the purpose of the amendment by parliament of the maximum penalty of life years to death in wilful murder cases without question where the facts and circumstance are clear and beyond all reasonable doubt against the prisoners as is the case here. This is a case parallel to Ume’s case (supra) which is from Pangalu also in Talasea. And State v Kuvi [2017] PGNC 270; N6934 (21 September 2017) which is from Ganeboku in Talasea. And that decision was in September 2017 just after the celebration of the forty second Independence this is now the forty third Independence celebrations and this offence of wilful Murder in that area has not subsided nor does it appear being deterred. The Court has in these given circumstances a duty under law to impose the rule of law by Strong deterrent and punitive sentences to bring about order and lawfulness. That is called given the circumstances and the facts depicted out here beyond all reasonable doubt against the prisoners Max Malala, William Kiu and Alois Bailey all of Minda, Talasea.
    
21. You paid no heed to the sanctity of life under Section 35 of the Constitution. There are no special or extenuating circumstances: State v Hagei [2005] PGNC 60; N2913 (21 September 2005), to say otherwise than the sentence appropriate here of life imprisonment against you all.
    
22. Accordingly the proportionate and appropriate sentence against you all equally and severely for the crime of Wilful Murder of Cletus Kito Mane committed on the 12^th November, 2016 at Minda Talasea is Max Malala, William Kiu and Alois Bailey all of Minda, Talasea you are all sentenced to Life Imprisonment.
    
23. The sentence of the Court is Life Imprisonment against all of you.

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitors : Lawyers for the Defendant