State v Waimba [2022] PGNC 116; N9531 (11 March 2022)

N9531

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 371 OF 2018

BETWEEN:
THE STATE

AND:
JACK WAIMBA

Maprik: Rei, AJ
2021: 1^st, 5^th,8^th March, & 2^nd, 4^th & 24^th June
2022: 2^nd, 11^th, 14^th, 21^st February & 11^th March

CRIMINAL LAW – Sentence – wilful murder – admission of prisoner in record of interview – trial conducted – guilty of wilful murder – sentence of life year. Section 19 of Criminal Code – 35 years sentence synonymous to life imprisonment – pastor of a Christian Religion involved – Preamble of Constitution.

Cases Cited:
Papua New Guinean Cases

Avia Aihi (No.3) -v- The State [1982] PNGLR 92
Goli Golu -v- The State [1979] PNGLR 653
Koivi -v- The State SCRA No.51 of 2003; [2005] PGSC 34; SC789 (31^st May 2005)
The State v Shumbo Gihiye & Ors (2012) N4701
The State -v- Ahumpa [1998] PNGC 134; N1789
The State -v- Job Togir CR No. 754 of 2020 Aitape 18^th June 2021
The State -v- Jude Gena and four others [2004] CR No. 1599 of 2003: N2649
The State -v- Soti Mesuno and others (Supra)
The State -v- Max Java [2002] SC701

The State -v- Mark Poroli [2004] PNGLR 9
Ure Hane -v- The State [1984] PNGLR 105
The State -v- Joseph Tunde Binape: CR No. 261 of 2001: N2727
The State -v- Wilfred Opu Yamande Ndanabet (2004) N2728:
The State -v- Yemola Mealo [2004] N2708

Overseas Cases

R -v- Radich [1954] NZLR 86

Legislation

Criminal Code, S. 299 & S.19

Counsel:

Ms. T. Aihi, for the State
Mr. A. Kana, for the Prisoner

DECISION ON SENTENCE

11^th March, 2022

1. Rei, AJ: A decision on verdict in this matter was handed down in Wewak, East Sepik Province on the 24^th day of June 2021.
   
2. The prisoner Jack Waimba was then found guilty of the offence of wilful murder.
   
3. The matter was deferred to enable Counsel for the prisoner to file submission on Sentence.
   
4. Oral Submissions made on 15^th February 2022 – a very unreasonable delay to meting out justice. Ms. Aihi did file undated written submissions.
   
5. Oral Submissions and a decision on sentence were not made until 5^th February 2022 as I have been on circuit in the whole of 2021 to the various districts in East Sepik Province and Sandaun Province.
   

ALLOCUTUS

6. Having been found guilty of the wilful murder of the late Alfred Fasien on the 15^th of November 2017, the prisoner gave a long speech in Court for sentencing purposes on the day of 24^th June 2021.
   
7. The prisoner said that he did not deny the charge and said sorry to the relatives of the deceased for what he did. He also said sorry to the Court and lawyers for taking up time. He paid a bit of compensation to the relatives of the deceased.
   
8. Whilst I appreciate the contrition expressed by the prisoner, what concerns me is that the time of the Court was wasted by hearing a matter in which the prisoner unreservedly admitted his guilt in the record of interview then turns around and enters a plea of not guilty resulting in the running of an unnecessary trial taking up to 5 days. During the trial, it was clearly observed by myself that he was coaching his witness in the hope that he escapes punishment.
   
9. This is a very serious matter because there are people waiting in the queue to be heard when a case like this where evidence is clear a plea of guilty should have been entered was not done. This should weigh heavily against the prisoner on sentence.
   
10. Furthermore, this offence was committed in the eyes or presence of the village people. A crowd gathered to contribute money for the raising of school fees for the children of the deceased. Mothers and children were present.
    
11. It was in the presence of mothers and children that the prisoner took perfect aim at the deceased who was then standing amongst men and inflicted fatal wounds to the area of the eye and nose causing the instant death of the deceased.
    
12. The attack on the deceased was pre-meditated as it resulted from allegations that the deceased killed the prisoner’s wife using sorcery.
    
13. This is inexcusable: the wilful murder or otherwise of an innocent man who did not contribute in any way to his death in the presence of mothers and children.
    

MITIGATING & AGGRAVATING FACTORS

14. The mitigating factors are that the prisoner is a first-time offender and that there was a presence of defector provocation. I note he is a church worker as a pastor.
    
15. These mitigating factors are outweighed by aggravating factors which include the loss of an innocent life, use of dangerous or offensive weapon, which is a bush knife, several injuries being inflicted on a vulnerable part of the body in the region of head and nose, and a vicious attack launched by the prisoner in the company of other people in the presence of unsuspecting people amongst whom were children and mothers. It is hard to imagine children of the deceased crying for their father who was then left in a helpless situation. One moment he was actively participating in raising funds but, at the spur of a moment and in the twinkling of the eyes, he was found breathless and dead. A very sad state of affairs.
    
16. I have noted while hearing matters in these areas that the murder of victims in this part of the country involves the use of bush knives, which is prevalent. An instrument which should be used to make gardens to provide food for the family but has been used to murder people and put them in the morgue for burial.
    

SENTENCE

17. Given the above considerations, the question is what sentence should be imposed.
    
18. Criminal Code, Sec. 299 provides that the penalty of death be imposed when a person is found guilty of wilful murder. In the case of The State -v- Mark Poroli [2004] PNGLR 9, Lenalia J said that these sentencing principles were set out in the cases of Goli Golu -v- The State [1979] PNGLR 653, Avia Aihi (No.3) -v- The State [1982] PNGLR 92 and Ure Hane -v- The State [1984] PNGLR 105. These cases state that the maximum penalty for wilful murder is death. Lenalia J then remarked: “That the maximum penalty shall only be imposed on these cases where they are categorized to be the worst type of cases or the worst type cases.”
    
19. But before I discuss the penalty to be imposed, I wish to state here the reasons why I referred to cases involving the death penalty. In doing so, I refer to the case of Ure Hane -v- The State [1984] PNGLR 105 in which the National Court of Justice per Bredmeyer J set out 8 categories of serious wilful murder cases. These 8 categories do not include wilful murder committed in a village within the view of village people including women and children. As Sevua J said in The State -v- Eliesa Kopeia Madiroto [1997] N1554, the circumstances have changed.
    
20. I say this because it is an accepted norm that a village is the safest place for one to relax and enjoy his private life. It is not usually the place where serious crimes like wilful murder are committed. In fact, it should be the last place.
    
21. This offence having been committed in the village in the presence of women, children and other people involved in a worthy cause calls for a sterner penalty.
    
22. Turning now to the penalty to be imposed in this case
    
23. The Supreme Court of Justice set the sentencing tariffs in the case of Koivi -v- The State SCRA No.51 of 2003; [2005] PGSC 34; SC789 (31^st May 2005) as follows:
    

(Waigani: Injia DCJ, Lenalia & Lay JJ: 2004: July 27^th October 27^th, 2005, May 31^st)

CATEGORY	WILFUL MURDER
CATEGORY 1	-15 – 20 years
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.
CATEGORY 2	- 20 – 30 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attack. - Weapon used - Strong desire to kill
CATEGORY 3	- Life Imprisonment -
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.
CATEGORY 4	- DEATH -
WORST CASE – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

24. Relevant comparative cases previously decided are of guide in imposing a sentence in this case.
    
25. The State -v- Joseph Tunde Binape: CR No. 261 of 2001: N2727: Waigani: Davani J (2004: 5, 12 November):
    

This was a trial. The deceased was chopped and hit on the head and hung up in a killing relating to sorcery. The body was later dumped at the end of the Jacksons Airport to conceal it. It was described as a worst category of wilful. The prisoner was sentenced to life imprisonment.

26. The State -v- Soti Mesuno, Luke Iungu Gihiye, Mesuno Lungu and Meki Shumo Gihiye (2012) N4701: Goroka: Kangwia AJ (2012: 25 April & 08 June)
    

A trial was conducted in this matter. Prisoners wilfully murdered a pastor in 2015 at Asaro, Goroka. The deceased was attacked with bush knives and shot in the head with a homemade gun and died instantly. He was killed in front of his son from his home. The body of the deceased was concealed from his family and exhumed by the police later. The deceased suffered knife wounds to his legs and a gunshot wound to his head.

Three prisoners namely Luke Iungu Gihiye, Mesuno Lungu and Meki Shumo Gihiye received 34 years imprisonment term. The prisoner Soti Mesuno though a juvenile, was not the principal offender at the material time and received an imprisonment term of 17 years for his participation (that is half of the imprisonment term imposed on the adult prisoners). All pre-trial custody period were deducted and the balance of imprisonment terms to serve at Bihute Correctional Institution.

27. The State -v- Wilfred Opu Yamande Ndanabet (2004) CR No. 463 of 2004: N2728: Waigani: Davani J (2004: 4, 9 November)
    

The prisoner killed a known sorcerer for fear that he might be killed was sentenced to 20 years. It was a guilty plea to the charge of wilful murder.

28. The State -v- Jude Gena and four others [2004] CR No. 1599 of 2003: N2649 Waigani: Kapi CJ (12^th, 14^th, 19^th, 31^st May, 3^rdJune, 24^th September 2004)
    

The prisoners were sentenced to 20 years after conviction for wilful murder. This was a sorcery related killing where the belief in sorcery as the cause for an earlier death resulting in the killing of the deceased at Erima National Capital District.

The body was dumped at Baruni. It was held that the payback killing was not a factor in mitigation although belief in sorcery may be taken into account as a relevant factor in sentencing as it controls the thinking and actions of those who believe it.

29. The case before me is also a sorcery related murder case in which the prisoner did not have any real proof of sorcery causing death but chose to inflict fatal wounds on the deceased causing his death. It occurred in the village, underneath a house and in the presence of women and children. The facts of this case are similar to that of The State -v- Soti Mesuno and others (Supra) in which the killing took place in the presence of his son. The difference here is that this killing took place in the village in the presence of many people.
    
30. In the case of The State -v- Soti Mesuno, Luke Iungu Gihiye, Mesuno Lungu & Meki Shumo Gihiye (2012) N4701, (Goroka) Kangwia AJ made the following remarks:

“sorcery related killings are attracting higher or equivalent custodial sentences than other types of homicides as in the case of The State -v- Max Java [2002] SC 701 where a sentence of 20 years imposed for murder on a guilty plea for cutting the deceased on the stomach with a bush knife was on appeal affirmed and the case of The State

-v- Yemola Mealo [2004] N2708 where the prisoner was sentence to 22 years for chopping the neck of the deceased.”

31. The unlawful taking of the life of a human being is an early termination of a life that could have otherwise contributed meaningfully to the welfare of his or her family and should be scorned upon by society.
    
32. It is cannibalism at its best practised in the neo-Melanesian society of Papua New Guinea.
    
33. Every human being is sacred having been born for a purpose. As His Honour Kirriwom J said in The State -v- Ahumpa [1998] PNGC 134; N1789:
    

“.....when you look at all these cases of deliberate and calculated murders, whether they involve pre-planning or not, whether they were carried swiftly or quickly or slowly and in the most gruesome, barbaric or agonizing manner or the victims are gunned down, axed or knifed or clubbed to death by heavy or blunt objects, the end result is the same, (that) a life has been prematurely taken.”

34. As I stated in the matter of The State -v- Job Togir CR No. 754 of 2020 Aitape 18^th June 2021:
    

“It is evident in this case the deceased did not anticipate any mishap on him going to the river to bath or relax. He knew very well it was safe to do so as he had done no wrong to the prisoner or anyone else on any prior occasion. That the river was safe. Fate had it that it was his last day on earth....”

35. In this case, the deceased was involved in the worthy cause of raising funds for the payment of school fees for his children in which he invited his extended family members and friends to contribute. He was not suspicious of any danger that would imperil his life on that day. He was wilfully murdered in public in the village, underneath a house in the presence of mothers, children and youth of the village. The offence was not committed in private.
    
36. It was during that peaceful occasion that the prisoner approached the deceased in his premises and inflicted serious but fatal blows with the use of a dangerous weapon: a bush knife, in the close scrutiny of his family members, friends, some of whom were mothers and children, which resulted in his untimely death.
    
37. A more serious factor that needs mention is that the prisoner admitted in evidence that he is the Pastor of the South Seas Evangelical Church prior to and at the time he committed the crime of wilful murder.
    
38. Here is a situation where the prisoner was holding onto the Bible on his one hand and reading Exodus 20:13 saying and preaching the words “(T)hou shall not kill ...” and on his other hand, he held a bush knife, swung it twice at the deceased and slew him to death instantly thereby flagrantly contravening the very moral law he was preaching. Not only that, he breached Constitution Section 35(1) which provides that “No person shall be deprived of his life intentionally except...” any of the conditions set out thereunder are satisfied.
    
39. No evidence was given as to the role of a pastor in the community. But it is an accepted fact that the pastor of a Church is the shepherd of the flock whose sacred duty is to preach salvation to humanity and not otherwise. He is to talk the talk and walk the walk.
    
40. The conduct or misdemeanour of the prisoner in this case falls absolutely short of that moral requirement.
    
41. Although not a public officer; as a church worker, a pastor is placed in almost the same position as a police officer to bring and maintain peace and harmony in the community where he or she resides.
    
42. It is strange for me to see this prisoner falling into this trap.
    
43. Considering the facts of this case, the prisoner falls within Category 2 of the sentencing guidelines of Kovi -v- The State. He should pay for it.
    
44. With the reasons advanced in this judgement, I do not think it is appropriate that any lesser sentence of life imprisonment be imposed. But Section 19 of the Criminal Code gives me a discretion to impose a sentence of imprisonment other than life imprisonment.
    
45. But sentences imposed on any crime should demonstrate and both emphasise deterrence and rehabilitation. Because the prisoner is an adult in this case the sentence imposed here should be a deterrence to himself and others. Thus in R -v- Radich [1954] NZLR 86, The New Zealand Court of Appeal said and I quote:
    

“One of the main purposes of punishment is to protect the public

from the commission of crime by making it clear to the offender and to other persons with similar impulses that if they yield to them they will meet with severe punishment. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does and will prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment or only a light punishment. If a court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime it fails in its duty to see that the sentences are such as to operate a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct of the individual offender and the effect of the sentence on these should also be given the most careful consideration although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment.”

46. I have given serious consideration to the fact that the prisoner is a missionary. He has contributed to the well being and welfare of society. As such a term of years be imposed herein reflecting both deterrence and rehabilitation. The term of imprisonment must not be seen as giving him or any other missionary an excuse or licence to commit crimes as though they are privileged or are holier than thou.
    
47. This decision must send rippling waves of warning to others that there are no good reason(s) for missionaries of any sort to commit crimes under the guise of him or her being a missionary.
    
48. After all the Constitution of Papua New Guinea provides at the Preamble that the principles of Christianity are to be practised at all levels of the Community: family, clan, village, suburbs, settlements, towns and cities in this country and the flag bearers of this are missionaries. It specifically provides:
    

WE THE PEOPLE OF PAPUA NEW GUINEA –

• United in one nation
• pay homage to the memory of our ancestors – the source of

our strength and origin of our combined heritage

• acknowledge the worthy customs and traditional wisdoms of

our people – which have come down to us from generation

to generation

• pledge ourselves to guard and pass on to those “who come

after us our noble traditions and the Christian principles that

are ours now.

49. A sentence of life imprisonment would definitely be deterrent. But the prisoner must be given the chance to rehabilitate. A sentence of 30 years of imprisonment is imposed out of which the time spent in custody awaiting trial is to be deducted. The prisoner is now 36 years of age. He will be 65 years of age when released. This is a sentence which is synonymous to life imprisonment.
    
50. In his submissions, Mr. A. Kana tendered by consent a medical report that says the prisoner is a TB patient. This medical report is dated 8^th July of 2021 No back-up medical report was presented to see if he is medically fit. Even so, his incarceration in prison puts him in better position to receive treatment under the supervision of CIS officers.
    
51. He also produced a letter dated 10^th February 2022 written by Boram CIS which says the prisoner is of good character and that I need consider that when sentencing. I do not think it is proper for the Court to do so. If he is of good character, the CIS has been given authority under its enabling legislation to consider that factors. The Court is not here to double play the role of the CIS.
    
52. Having handed a decision on sentence, I now make some remarks on the reasons for the delay in handing down this decision.
    
53. The lengthy delay was caused by the inadvertence of the defence counsel of Alman Lawyers in not making written and oral submissions on sentence when occasions arose. He said he was not ready. Mr. A. Kana of the Public Solicitor’s Office did stand in for Alman Lawyers at a very late stage and made oral submissions almost on the same day. He is commended for that.
    
54. I note from Court appearances the attitude shown by Ms. T. Aihi which I also commend.
    
55. Parties must be reminded that decisions delayed in anyone case: criminal or civil, will always result in the denial of natural justice and that justice delayed is justice denied. Additionally, more evil will be perpetrated. As the Bible says in Ecclesiastes 8:11 that ... “Because the sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil.”
    
56. I have been very concerned about this case because the prisoner has to be told of his verdict as soon as possible. Whilst I do not entirely blame the previous defence counsel of Alman Lawyers, I believe his inadvertence caused delay in making a decision in this matter in a timely manner.
    
57. Parties must do everything possible to present cases and complete them sooner and not to defer them wantonly as such delays cause further illegal conduct or behaviour by the citizens of this country.
    
58. The Court thus make the followings:
    
    • (i) the prisoner is to serve 30 years imprisonment;
    • (ii) time of remand awaiting trial of 4 years 13 days is to be deducted;
    • (iii) the balance of the sentence of 25 years 11 months 17 days after deduction of time in remand awaiting trial shall be fully served subject to any further deduction(s) to be made by the jail authority; or
    • (iv) the exercise of Power of Authority

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