State v Peter [2022] PGNC 32; N9478 (10 March 2022)

N9478

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1070 OF 2020, CR 1071 OF 2020, CR NO 1072 OF 2020, CR 1073 OF 2020, CR NO 1074 OF 2020, CR NO 1075 OF 2020, CR 1076 OF 2020, CR 1077 OF 2020, CR 1078 AND CR NO 1079 OF 2020

BETWEEN:
THE STATE

AND:
GRAHAM FLOYD PETER

Lorengau: Narokobi J
2021: 20^th, 21^st and 22^nd October
2022: 10^th March

CRIMINAL LAW – Wilful Murder – Sentence – Sentencing Principles-Whether circumstances of the offence falls within the worst category of wilful murder -Considerations for the imposition of the death Penalty –- Mitigating and aggravating factors –Extenuating circumstances considered -Need to impose a sentence to reflect seriousness of the offence – Objective of deterrence considered- Application of sentencing tariffs

The Prisoner was convicted on a charge of 10 counts of wilful murder under s299(1) of the Criminal Code. He was found guilty of the following facts. In the early hours of 22 September 2017, he was in the company of some accomplices, and they broke into Splendid Star, a shop in Lorengau town, Manus Province. They stole an undisclosed sum of money and set the building alight, killing 10 Chinese nationals. There was no direct evidence of the Prisoner’s involvement, except that he confessed to the crime to three witnesses, who were his close relatives. The Prisoner says there is no evidence of the extent of his involvement and therefore a term of years should be imposed. State contends that this case falls within the worst category of wilful murder in Papua New Guinea, as 10 people were killed in one single chain of events and warrants the maximum penalty, the death sentence.

Held:

(1) When comparing the various cases on wilful murder, this case falls within category of one of the worst cases of wilful murder in Papua New Guinea. It was pre-planned, various offences were committed in the process leading up to the killing, and the victims, 10 in total, died a painful and torturous death in the inferno, showing a total disregard for the sanctity of human life.

(2) The gravity of the offence, one of the worst in the history of Papua New Guinea, lessens the weight that is to be given to the mitigating factors in favour of the Prisoner.

(3) The basic principles iterated in the Preamble of the Constitution, that is the principles of rejection of violence as a means to resolving conflict, the centrality of integral human development in Papua New Guinean law and the adoption of Christian principles requires the Court to weigh carefully whether there are any extenuating circumstances that militate against the application of the death penalty.

(4) Since the evidence on conviction were confession evidence and there was no evidence of the extent of involvement of the Prisoner, this was an extenuating circumstance operating against the imposition of the death penalty.

(5) Having considered the sentencing tariffs and the objective of sentencing paying particular attention to the number of persons killed and that it occurred during the commission of breaking and entering, in a dwelling place, a sentence of life imprisonment is imposed for each of the 10 counts of wilful murder.

Cases Cited:

The following cases are cited in the judgment:
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Ambrose Lati v The State (2015) SC1413
Arua Maraga Hariki v The State (2007) SC1320
Avia Aihi v The State (No.3) [1982] PNGLR 92
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Erebebe v The State (2013) SC1228
Gimble v The State [1988-89] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
HROI No 2 of 2015; In the matter of enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; Re. Human Rights of prisoners sentenced to death (2017) N6939
John Elipa Kalabus v The State [1988] PNGLR 193
Kovi v The State (2005) SC789
Simbe v The State [1994] PNGLR 38
The State v Alphonse Hapot (No 2) (2016) N6452
The State v Ambrose Lati (2009) N3740
The State v Arua Maraga Hariki (2003) N2332
The State v Ben Simakot Simbu (No 2) (2004) N2546
The State v Eric Naks & Keith Lasi Aira (2016) N6182
The State v Gerua (2002) N2312
The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2001) N4381
The State v Kepak Langa (No 2) (2003) N2462
The State v Kiptaun (2021) N9139
The State v Mark Poroli (2004) N2655
The State v Peter (2022) N9415
The State v Sedoki Lota & Fred Abenko (2007) N3183
The State v Selmon Amos & Misialis Amos (No 3) (2012) N5073
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836
Ure Hane v The State [1984] PNGLR 105

Legislation cited:
Constitution
Criminal Code Act, Ch 262
Criminal Code Amendment Act 1991, (Act No. 25 of 1991)

Counsel:
Mr. K. Pokiton, for the Prisoner
Mr P. Kaluwin, for the State

JUDGMENT ON SENTENCE

10^th March, 2022

1. The Prisoner, Graham Floyd Peter of Likum Village was found guilty of wilful murder under s 299(1) of the Criminal Code in that on 22 September 2017 at Lorengau, in Papua New Guinea, he (in the company of others) wilfully murdered the following persons by setting alight the building they were occupying:
   
   1. Yan Xiamei, Chinese female;
   2. Weng Yun, Chinese female;
   3. Yang Minghui, Chinese male;
   4. Shi Yun, Chinese male;
   5. Chen Shi Yi, Chinese male;
   6. Li Na, Chinese, Chinese female;
   7. Chen Qinghua, Chinese male;
   8. Yan Chenxia, Chinese female;
   9. Yan Xin, Chinese male; and
   10. Wu Fenghua, Chinese female.
       
2. A nolle prosequi was presented for Robillo Micah and Nathan Boas, Graham Floyd Peter’s co-accused and they were discharged.
   
3. The facts which the State proved against the Prisoner on circumstantial evidence was that on 22 September 2017, the Prisoner and some accomplices broke and entered Splendid Star, a shop in Lorengau town, Manus Province, stole an undisclosed amount of money and set on fire the store, which resulted in the deaths of 10 Chinese nationals. All the bodies were charred and burnt beyond recognition.
   
4. The matter is now before me to award an appropriate sentence to the Prisoner for the commission of the crime of wilful murder.
   
5. The maximum penalty for the offence of wilful murder under s 299(1) of the Criminal Code is the death penalty (s 299(2)). The Criminal Code Amendment Act 1991, (Act No. 25 of 1991) repealed what was s 299(2) (wilful murder) and re-introduced the death penalty. Since the imposition of the death penalty, it is a matter of public record that no prisoner has been executed (See HROI No 2 of 2015; In the matter of enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; Re. Human Rights of prisoners sentenced to death (2017) N6939). It is also on public record that the government is considering the abolishment of the death penalty. But the law as it is, is that the death penalty exists in the law books of Papua New Guinea.
   
6. There are two central principles of sentencing in this jurisdiction, firstly that the maximum penalty is reserved for the worst set of circumstances of the offence, and secondly, no two cases are the same and each case must be considered and decided on its own peculiar circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105 (hereafter Hane); Simbe v The State [1994] PNGLR 38).
   
7. The third principle of sentencing of relevance here is that in cases where the maximum penalty is the death penalty, s 19(1)(aa) of the Criminal Code provides that a person liable to death may be sentenced to imprisonment for life or for a shorter term. That provision, s 19, “Construction of Provisions of Code as to Punishment,” states:
   

“(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and...”

8. The issue I must determine here is what is the appropriate sentence I must impose on the Prisoner. In my short time as a Judge, I am now dealing with a case which potentially falls within the worst category of wilful murder ever committed in Papua New Guinea, determined by the number of lives lost in a single chain of events. This was pointed out to me by Mr Kaluwin, and he says the maximum penalty is warranted in this case.
   
9. I am guided by three issues in my judgment in arriving at the appropriate sentence to impose on the Prisoner:
   
   • What are the considerations for the imposition of the death penalty?; and
   • Does this case, fall within the category of cases that arrant the death penalty?; and
   • Are their any extenuating circumstances militating against the imposition of the death penalty?
     
10. There are also objectives of sentencing that must be borne in mind when sentencing, including deterrence, separation, rehabilitation and retribution (Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510). In a wilful murder case, the inclination is towards a sentence that will separate the offender from the rest of society as the offender has disregarded the basic right that guarantees our existence as human being. The right to life enables us to enjoy other rights and freedoms.
    
11. Personal details of the Prisoner are that he is 31 years of age, and is from Likum Village, Pobuma Local Level Government, Lorengau District, Manus Province. He is married and has a two-year old child. Both his parents are alive, his father is 72 years old and his mother, 50 years old. He has two other siblings, both younger than him, a brother, and a sister. He completed his grade 10 at Lokobo High School in 2011. He has been detained since 28 October 2019.
    
12. The prisoner has no prior convictions. This is the first time he is in trouble with the law.
    
13. In his allocatus, he expressed remorse for the crime. He wants the court to be lenient with him, and he says that his father is getting old, and he would like to be close to him to provide support to his old father and his young family. No other details of how the crime was committed is provided from his statement.
    
14. The Pre-Sentence Report dated 11 February 2022 prepared by Nancy Poli the Senior Provincial Probation Officer did not recommend the offender for probation on account of the serious nature of the offence committed.
    
15. Mr Pokiton, the Counsel for the Prisoner, relies heavily on two National Court decisions - The State v Gerua (2002) N2312 and The State v Kiptaun (2021) N9139 where the court held that each prisoner must be punished according to the degree of his criminality in the overall circumstances of the offence. In this particular case, Mr Pokiton submits that there is no evidence of the extent of the involvement of the prisoner. Taking into account his mitigating and aggravating factors as well as s 19(a)(aa) of the Criminal Code, the case does not warrant the death penalty.
    
16. In Counsel’s submission, aggravating factors are that there were multiple deceased persons. Mitigating factors on the other hand were that the Prisoner was remorseful, a first-time offender, no evidence of his involvement and he has a young child. Taking these factors into account, a sentence of 15 years would be appropriate.
    
17. Mr Kaluwin for the State prefaced his submission by submitting that a person’s home is their castle. The offence was committed by breaking into the deceased home and killing them, in their “castle” by setting it alight.
    
18. Mr Kaluwin relies on Erebebe v State (2013) SC1228 (hereafter Erebebe) to make his point that this case warrants the death penalty. In that case, the State appealed a sentence of life imprisonment and succeeded in the Supreme Court. The National Court’s sentence was overturned, and the death penalty was imposed on the following facts:
    

“48. The facts of the murders require to be restated so that their severity can be appreciated. There was a meeting at which an ambush was planned. This meeting was held in the context of there being a conflict between certain clans that had resulted in previous deaths. As the vehicle in which the nine deceased were travelling entered the ambush, five adults including two elderly men were killed by sustained machine gun fire. When the vehicle stopped, four children aged four and five years were dragged from the vehicle and cut on their heads with bush knives. The wounds to the children's heads consisted of brain penetrating cuts that had been carved to resemble various letters of the alphabet. The trial judge found that the children "died slowly and in the most horrific painful way.”

19. Mr Kaluwin submits that this case is far worse than the Erebebe. It was a group attack; it was pre-planned and executed. The deceased persons were asleep when the prisoner and his accomplices broke into the house, stole an undisclosed sum of money and set the house on fire such that it prevented the deceased from escape, thereby incinerating them in the inferno.
    
20. Mr Kaluwin further submits that in Gimble v The State [1988-89] PNGLR 271 (hereafter Gimble) the court held that in a case where multiple co-accused are found guilty, each of the co-accused would be held to the same level of responsibility as without each of their participation, the commission of the crime would not be possible.
    
21. In sharp contrast to the Prisoner, the State submits that the mitigating factors are twofold – the Prisoner is a first-time offender and has expressed remorse to the court and to the family of the deceased. The aggravating factors are more extensive, and the State submits that they are as follows:
    
    • Invasion on the deceased who were unarmed and sleeping;
    • The Prisoner and his accomplice trapped the deceased and they had no way of escaping;
    • Careless disregard for the sanctity of life in that they attacked the deceased while they were sleeping ;
    • It was an unprovoked attack;
    • Premature taking of the life of 10 persons and the impact on their family;
    • An undisclosed amount of money was stolen with some store items were stolen and the Prisoner and his accomplice escaped;
    • The store and store items were burnt to the ash;
    • Prevalence of such offence;
    • Deceased persons were foreign investors; and
    • Damage to the country’s international reputation.
      
22. After taking into account the sentencing tariffs for homicides in Kovi v The State (2005) SC 789 (hereafter Kovi) the State says that this case falls within the category 4 of the tariffs, being the worst of its kind. It says this because it was a group attack, it was pre-planned and executed. The fire lit was so big that it prevented the deceased to escape. It was pre-planned because the Prisoner had previously stolen property from his former employer. For these reasons, the court should impose the maximum penalty.
    
23. I have attempted research on the reported cases where the death penalty was imposed. My research is made easier by Cannings J from his summary in HROI No 2 of 2015; In the matter of enforcement of Basic Rights under Section 57 of the Constitution of the Independent State of Papua New Guinea; Re. Human Rights of prisoners sentenced to death (2017) N6939. From His Honour’s extensive research, he states that 23 persons have been sentenced to death since the reintroduction of the death penalty and all 23 persons have been convicted of wilful murder. There has however been no execution. Of the 23, 14 remain under sentence of death, but nine are no longer under that sentence due to either their death in custody or their sentence being commuted on appeal or review by the Supreme Court (para 44 of the judgement). The table reproduced below, appears from his Honour’s judgement, but I have taken the liberty to delete the column on “Name,” “Court” and “Custody” as they are not relevant for present purposes:
    

TABLE 1: PRISONERS UNDER SENTENCE OF DEATH

No	Offence(s)	Sentence	Appeal/review status
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted on 23 Sep 03, after trial, of the wilful murder of a young man. The prisoner and five others ambushed the deceased and his family as they were driving along a road near Imi village, Enga Province, on 18 Nov 02 (The State v Kepak Langa (No 1) (2003) N2461).	The prisoner was sentenced to death on 26 Sep 03 (The State v Kepak Langa (No 2) (2003) N2462).	An appeal against conviction and sentence, SCRA No 80 of 2003, was dismissed for want of prosecution by the Supreme Court (Kandakasi J, Hartshorn J, Kassman J) at Waigani on 31 Oct 13.
	Wilful murder, Criminal Code, s 299(1): two counts. The prisoner was convicted on 18 Mar 04, after trial, of the wilful murder of a mother and child after he raped the mother in front of the child. He committed the offences at Vanimo, West Sepik Province, on 19 Jul 02 (The State v Ben Simakot Simbu (No 1) (2004) N2573).	The prisoner was sentenced to death on 26 Mar 04 (The State v Ben Simakot Simbu (No 2) (2004) N2546).	An appeal against conviction and sentence, SCRA No 23 of 2004, was dismissed for want of prosecution by the Supreme Court (Batari J, David J, Kassman J) at Waigani on 26 Apr 11.
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after pleading guilty, of the wilful murder of a police officer (by shooting him in the head at close range) he believed had shot dead his uncle. He committed the offence at Koroba, Southern Highlands Province, on 17 May 02.	The prisoner was sentenced to death on 25 Aug 04 (The State v Mark Poroli (2004) N2655).	An appeal against conviction and sentence, SCRA No 71 of 2004, was dismissed for want of prosecution by the Supreme Court (Gavara-Nanu J, David J, Collier J) at Waigani on 31 Oct 13.
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after pleading guilty, of the wilful murder (by chopping her with a bushknife) of a woman he believed was a sorcerer responsible for the death of his parents. He committed the offence, together with co-offender Fred Abenko (who has since died in custody) at Sigaroi, Milne Bay Province, on 9 Jul 05.	The prisoner was sentenced to death on 1 Oct 07 (The State v Sedoki Lota & Fred Abenko (2007) N3183).	The prisoner’s application to the Supreme Court for review of his conviction and sentence, SC Rev No 15 of 2015, has not yet been heard.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after a joint trial (with four other accused, also convicted) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4380).	The prisoner was sentenced to death on 14 Jul 11 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381).	The prisoner’s appeal, SCRA No 20 of 2011, was heard by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J, Pitpit J) at Kokopo on 24 October 2016. Judgment has been reserved.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after a joint trial (with four other accused, also convicted) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4380).	The prisoner was sentenced to death on 14 Jul 11 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381).	The prisoner’s appeal, SCRA No 19 of 2011, was heard by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J, Pitpit J) at Kokopo on 24 October 2016. Judgment has been reserved.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after a joint trial (with four other accused, also convicted) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4380).	The prisoner was sentenced to death on 14 Jul 11 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381).	The prisoner’s appeal, SCRA No 31 of 2011, was heard by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J, Pitpit J) at Kokopo on 24 October 2016. Judgment has been reserved.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after trial, (separate to the trial of Gregory Kiapkot & four others) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Kenny Wesley (2011) N4609).	The prisoner was sentenced to death on 1 May 12.	The prisoner’s appeal, SCRA No 7 of 2012, has not yet been heard by the Supreme Court.
	Wilful murder, Criminal Code, s 299(1): three counts. The prisoner was convicted, after a joint trial (with one other accused, his son, also convicted) of the wilful murder of three men (by shooting them with a firearm) who had been travelling on a motorised dinghy. The offences were committed at Tokua, East New Britain Province, on 31 Jul 08 (The State v Selmon Amos & Misialis Amos (No 2) (2012) N5072).	The prisoner was sentenced to death on 14 Dec 12 (The State v Selmon Amos & Misialis Amos (No 3) (2012) N5073).	The prisoner’s review, SC Rev No 63 of 2013, was heard by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J, Pitpit J) at Kokopo on 27 Oct 16. Judgment has been reserved.
	Wilful murder, Criminal Code, s 299(1): three counts. The prisoner was convicted, after a joint trial (with one other accused, his father, also convicted) of the wilful murder of three men (by shooting them with a firearm) who had been travelling on a motorised dinghy. The offences were committed at Tokua, East New Britain Province, on 31 Jul 08 (The State v Selmon Amos & Misialis Amos (No 2) (2012) N5072).	The prisoner was sentenced to death on 14 Dec 12 (The State v Selmon Amos & Misialis Amos (No 3) (2012) N5073).	The prisoner’s review, SC Rev No 64 of 2013, was heard by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J & Pitpit J) at Kokopo on 27 Oct 16. Judgment has been reserved.
	Wilful murder, Criminal Code, s 299(1): nine counts. The prisoner was convicted, after a joint trial with one other accused (Taros Togote, also convicted) of the wilful murder of nine persons (five adults who were shot dead and four children who were cut and stabbed with knives) who were travelling on a truck along a road in at Mohuveto, Bena-Bena, Eastern Highlands Province. The offences were committed on 21 Nov 99.	The prisoner was originally sentenced to life imprisonment- but on appeal by the Public Prosecutor against sentence, the sentence of life imprisonment was quashed and replaced on 2 May 13 with the sentence of death (Alois Erebebe & Taros Togote v The State (2013) SC1228).	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Cannings J, Kariko J, Kassman J) on 2 Dec 11 (Alois Erebebe & Taros Togote v The State (2011) SC1135). The Public Prosecutor’s appeal against sentence was upheld by the Supreme Court (Gavara-Nanu J, Davani J, Hartshorn J, Yagi J, Makail J) on 2 May 13, and the sentence of death was then imposed (Alois Erebebe & Taros Togote v The State (2013) SC1228).
	Wilful murder, Criminal Code, s 299(1): nine counts. The prisoner was convicted, after a joint trial with one other accused (Alois Erebebe, also convicted) of the wilful murder of nine persons (five adults, shot dead, and four children, cut and stabbed with knives) who were travelling on a truck along a road at Mohuveto, Bena-Bena, Eastern Highlands Province. The offences were committed on 21 Nov 99.	The prisoner was originally sentenced to life imprisonment- but on appeal by the Public Prosecutor against sentence, the sentence of life imprisonment was quashed and replaced on 2 May 13 with the sentence of death (Alois Erebebe &Taros Togote v The State (2013) SC1228).	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Cannings J, Kariko J, Kassman J) on 2 Dec 11 (Alois Erebebe & Taros Togote v The State (2011) SC1135). The Public Prosecutor’s appeal against sentence was upheld by the Supreme Court (Gavara-Nanu J, Davani J, Hartshorn J, Yagi J, Makail J) on 2 May 13, and the sentence of death was then imposed (Alois Erebebe & Taros Togote v The State (2013) SC1228).
	Wilful murder, Criminal Code, s 299(1): three counts. The prisoner was convicted, after trial, of the wilful murder of a 28-year-old woman and her two daughters, aged 6 years and 12 years (by cutting their necks). The offences were committed on Mal Island, Manus Province, on 20 Jan 13 (The State v Alphonse Hapot (No 1) (2015) N6455).	The prisoner was sentenced to death on 20 Apr 16 (The State v Alphonse Hapot (No 2) (2016) N6452).	The prisoner’s appeal, SCRA No 12 of 2016, has not yet been heard by the Supreme Court.
	Wilful murder, Criminal Code, s 299(1): four counts. The prisoner was convicted, after pleading guilty, of the wilful murder (by chopping them with a bushknife) of three men and a woman, in the course of an armed robbery of a bakery. He committed the offences, together with co-offender Eric Naks Lako (who was convicted of the same crimes but given a lesser sentence of 30 years due to his lesser involvement) at Koki, National Capital District.	The prisoner was sentenced to death on 12 Feb 16 (The State v Eric Naks Lako & Keith Lasi Aira (2016) N6182).	The prisoner’s appeal, SCRA No 4 of 2016, has not yet been heard by the Supreme Court.

TABLE 2: PRISONERS ORIGINALLY SENTENCED TO DEATH,
BUT NO LONGER UNDER SENTENCE OF DEATH

No	Offence(s)	Sentence	Appeal/review status
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after trial, of the wilful murder (by shooting) of the father of a young woman he had raped earlier on the same day, 9 Jul 93. The alleged offences were committed in Northern Province.	The prisoner was originally sentenced to death, having been convicted of both rape and wilful murder – but an appeal against conviction and sentence was upheld.	The prisoner’s appeal against conviction and sentence was upheld by the Supreme Court (Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J) on 4 Apr 96 (Charles Bougapa Ombusu v The State [1996] PNGLR 335) on the ground that the National Court had erred in law by conducting a trial of two separate charges, wilful murder and rape, contrary to Section 531 of the Criminal Code. The conviction and death sentence were quashed. Later, a new trial was ordered (Charles Bougapa Ombusu v The State [1997] PNGLR 699).
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after a joint trial (with two other accused, also convicted) of the wilful murder of a woman (by chopping her to death) who was the mother of a man who the offenders believed had unlawfully killed their relative. The offence was committed at Pagalau, Talasea, West New Britain Province, on 2 Dec 95.	The prisoner was originally sentenced to death – but on appeal, the sentence of death was quashed and replaced with the sentence of life imprisonment.	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Amet CJ, Kapi DCJ, Sevua J) on 4 May 00 (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State SCRA No 10 of 1997, 04.05.00, unreported). His appeal against sentence was upheld by the Supreme Court (Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Davani J) on 19 May 06, and the sentence of life imprisonment was substituted for the sentence of death (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836). He is in custody at Lakiemata Correctional Institution, West New Britain Province.
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after a joint trial (with two other accused, also convicted) of the wilful murder of a woman (by chopping her to death) who was the mother of a man who the offenders believed had unlawfully killed their relative. The offence was committed at Pagalau, Talasea, West New Britain Province, on 2 Dec 95.	The prisoner was originally sentenced to death – but on appeal, the sentence of death was quashed and replaced with the sentence of life imprisonment.	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Amet CJ, Kapi DCJ, Sevua J) on 4 May 00 (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State SCRA No 10 of 1997, 04.05.00, unreported). His appeal against sentence was upheld by the Supreme Court (Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Davani J) on 19 May 06, and the sentence of life imprisonment was substituted for the sentence of death (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836). He is in custody at Bomana Correctional Institution, National Capital District.
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after a joint trial (with two other accused, also convicted) of the wilful murder of a woman (by chopping her to death) who was the mother of a man who the offenders believed had unlawfully killed their relative. The offence was committed at Pagalau, Talasea, West New Britain Province, on 2 Dec 95.	The prisoner was originally sentenced to death – but on appeal, the sentence of death was quashed and replaced with the sentence of life imprisonment.	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Amet CJ, Kapi DCJ, Sevua J) on 4 May 00 (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State SCRA No 10 of 1997, 04.05.00, unreported). His appeal against sentence was upheld by the Supreme Court (Kapi CJ, Injia DCJ, Los J, Hinchliffe J, Davani J) on 19 May 06, and the sentence of life imprisonment was substituted for the sentence of death (Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836). He is in custody at Lakiemata Correctional Institution, West New Britain Province.
	Wilful murder, Criminal Code, s 299(1): two counts. The prisoner was convicted, after a trial, of the wilful murder of two young men who had been involved with him in a drinking session. He was found to have strangled and suffocated one, while it was not clear how he killed the other deceased. The alleged offences were committed on 31 Mar 01 near Baruni, National Capital District (The State v Arua Maraga Hariki (2002) N2331).	The prisoner was originally sentenced to death, having been convicted of two counts of wilful murder (The State v Arua Maraga Hariki (2003) N2332) – but an appeal against conviction and sentence was upheld.	The prisoner was granted leave to amend his appeal against conviction to include a ground of appeal concerning alleged procedural irregularity in the trial (Arua Maraga Hariki v The State (2007) SC1320 (Injia DCJ, Cannings J) – the appeal against conviction and sentence was subsequently upheld (Arua Maraga Hariki v The State, SCR No 12 of 2013, 29.08.07, unreported). A new trial is yet to be conducted.
	Wilful murder, Criminal Code, s 299(1); one count. The prisoner was convicted, after pleading guilty, of the wilful murder of a woman he believed was a sorcerer responsible for the death of his father. He committed the offence, together with co-offender Sedoki Lota at Sigaroi, Milne Bay Province, on 9 July 2005.	The prisoner was sentenced to death on 1 Oct 07 (The State v Sedoki Lota & Fred Abenko (2007) N3183).	The prisoner died in custody on 16 Jan 15 at Bomana CI, reportedly due to natural causes – his Supreme Court review of the conviction, SC Rev No 15 of 2015, has not been heard.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after a joint trial (with four other accused, also convicted) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4380).	The prisoner was sentenced to death on 14 Jul 11 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381).	The prisoner died in custody on 23 Mar 15 at Kerevat CI, reportedly due to natural causes – his Supreme Court appeal against conviction, SCRA No 38 of 2011, was dismissed for want of prosecution by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J & Pitpit J) at Kokopo on 24 Oct 16.
	Wilful murder, Criminal Code, s 299(1): eight counts. The prisoner was convicted, after a joint trial (with four other accused, also convicted) of the wilful murder of eight persons who were travelling on a motorised dinghy from Kokopo, East New Britain Province, to Namatanai, New Ireland Province. The offences were committed on 28 Sep 07 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4380).	The prisoner was sentenced to death on 14 Jul 11 (The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381).	The prisoner died in custody on 26 Jan 14 at Kerevat CI, reportedly due to natural causes – his Supreme Court appeal against conviction, SCRA No 37 of 2011, was dismissed for want of prosecution by the Supreme Court (Gavara-Nanu J, Mogish J, Hartshorn J, Kangwia J & Pitpit J) at Kokopo on 24 Oct 16.
	Wilful murder, Criminal Code, s 299(1): one count. The prisoner was convicted, after trial, of the wilful murder of his adopted son (by shooting him with a firearm). The offence was committed at Wabag, Enga Province, on 25 Mar 04.	The prisoner was on 17 Jul 09 sentenced to death (The State v Ambrose Lati (2009) N3740) but on appeal, the sentence of death was quashed and replaced with the sentence of life imprisonment.	The prisoner’s appeal against conviction was dismissed by the Supreme Court (Sakora J, Davani J, Mogish J, Cannings J, Manuhu J) on 27 Feb 15, but the appeal against sentence was upheld, and the sentence of life imprisonment was substituted for the sentence of death. He is in custody at Bomana Correctional Institution, National Capital District (Ambrose Lati v The State (2015) SC1413).

24. To determine whether the death penalty was applicable, the court in Kovi set out some relevant considerations:
    

“66. It is difficult to lay down any universal principle of general application as to the kind of intentional killing which may warrant the death penalty. Each case will depend on its own facts. In general, considering that the death penalty is “qualitatively different” from any other penalties for wilful murder and that in our Criminal Code the death penalty is limited to only three crimes considered to be the most serious crimes, we consider the death penalty may be considered appropriate in a willful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenseless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, “consc[ience]less”, “senseless”, “pitiless” and “unnecessarily torturous”: see Profitt v Florida 428 US 249 at 255. The crime is committed “by persistent, violent, wicked-tempered man with the utmost ferocity and with cunning”. Regina v Peter Ivoro, per Prentice J, at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances.” (Emphasis provided)

25. The question that Kovi raises in the context of this case is whether the killing by the prisoner Graham Floyd Peter was pre-meditated, vicious and brutal killing in cold blood of innocent and defenseless or harmless persons with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person? Looking at the facts of this case, this question must be answered, and I do so after looking at all the relevant considerations.
    
26. In Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836 (hereafter Ume), the facts which were summarised in Table 1 above, sets out some relevant considerations as well to determine whether an offender should be sentenced to death. One of the reason of the six reasons the Supreme Court offered in Ume that led it to overturn the National Court’s decision was because it did not assess the extent of involvement of each offender:
    

“74.... The involvement of a group of people numbering some nine (9) attackers in total, was not carefully considered. The deceased sustained a variety of injuries. There was also evidence that the killing was committed by a group of men numbering nine (9) and that she was repeatedly raped before she was killed. The attack involved emotional people on both sides of the conflict. Although in principle, the three (3) appellants were liable to the same penalty as participants in a common enterprise, it was also necessary to ascertain each appellant’s involvement and impose a sentence which reflected the extent of their involvement.” (Emphasis added)

27. In Gimble the principle established by the Supreme Court was that each of the accomplice must be sentenced in equal proportion as they all played a part to commit the offence:
    

“33. Mr Gene next argued that the trial judge did not distinguish the accused’s lesser role; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should 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 was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.”

28. In Ume (as noted from the relevant quote above), the Supreme Court was of the opinion that the sentence must reflect the extent of an offender’s involvement. I am persuaded by what the Supreme Court said in Ume as not all offenders have the same reason(s) for committing a crime and the punishment must reflect to a certain extent their state of mind.
    
29. The Supreme Court in Ume then went on to state:
    

“40. The punishment for wilful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.”

30. To determine whether the death sentence is appropriate the Supreme Court said that the court must balance the aggravating factors, any extenuating factors and then also look at mitigating factors. This is the task that I must do in this case.
    
31. As to what constitutes aggravating circumstances the Supreme Court provides the following guidance:
    

“41. The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.”

32. For extenuating circumstances, the court in Ume explained it thus:
    

“42. As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.”

33. Then for mitigating factors the court was of the following opinion:
    

“43. As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender; guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”

34. An important distinction is made by the Supreme Court between extenuating and mitigating factors as they both operate to lessen the sentence and may mistakenly be considered under the same label:
    

“44. There is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences, as with all serious crimes of violence, the gravity of the offence determined in the light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant: John Elipa Kalabus v The State [1988] PNGLR 193.”

35. The final point I take from Ume is as follows:
    

“45. The death penalty being the maximum punishment for wilful murder is reserved for the worst case of its kind. The facts of each case will of course be different and the punishment for each case is to be determined on its own facts. In considering the appropriateness of the death penalty in a particular case, there are many relevant factors and considerations under the different heads mentioned above to be taken into account and it is not possible to list them all. Some relevant considerations are the position of the victim, the capacity of the offender, the reasons or motive for the crime, the modus operandi and the expression of genuine remorse after the killing.”

36. This was a crime of sadistic cruelty of colossal proportion. The Prisoner resented being terminated from his employment by one of the deceased. The resentment took seed in his heart, grew, and matured into deep hatred. The hatred that he cultivated gave life to vengeance. In ironic imagery, the vengeance engulfed his mind and his soul like a fire, searing his conscience and basic humanity, enkindling him to a course that wrought devastation, destruction, and death.
    
37. In the eyes of the Prisoner, the misery of 10 innocent human beings was a trophy for him to parade before his relatives. In my view, it was his seared conscience seeking solace and salvation, such that his basic human dignity commanded him to free his mind from the bondage of the blood on his hands by confessing his crime to three different people so as to wash his conscience.
    
38. The Prisoner exercised his right to remain silent, so the State had to prove the case on circumstantial evidence. Even after conviction the prisoner has remined defiant, except to say sorry in his allocatus, giving no details or reasons for the commission of the crime. In his pre-sentence report, he says the perpetrators of the murders are still at large.
    
39. From the evidence no details are provided of the extent of the Prisoner’s involvement but the general picture of what happened in seen from the Moses Pain’s evidence. Moses Pain is a police officer with the Papua New Guinea Royal Constabulary. He holds the rank of Sargent, and he is the officer in charge of the Crime Scene Section in the National Forensic Science Centre, Gordons, in the National Capital District. He has been working as a Crime Scene and Arson Examiner for 29 years since he completed a one -year course in Crime Scene Examination in the State Forensic Science Laboratory in Melbourne, Australia. On 24 September 2017 to 12 October 2017, he attended and conducted an examination of Splendid Star in Lorengau. This is what he said which I referred to in the judgment on verdict in State v Peter (2022) N9415 at paragraph 63:
    

“Our examinations showed that the fire appeared to have started from the interior side to the main door area of the retail supermarket part of the building in the early hours between 0300am and 4.00am on Friday the 22nd of September 2017...

This area was on the front and mid part on the Western side of the building. The evidence were the burnt iron roofing and the snapped iron thick structural metals and other burnt items.

There was no evidence to suggest a break and enter of the whole building as well that two security guards fully alert the whole night of 21st to early 22nd September 2017, and 10 people believed alive in separate rooms inside, all geared with radio, also reports none.

Since the lights were allegedly on when the fire had already started conflicts electricity faults. My physical examinations of all available swich boxes and wirings suggested nil electricity short circuits through melting wires etc.

The foresaid suggests that the fire appeared to have been introduced by people from inside of the main entrance door area of the retail supermarket of the building.

The open safe and the cut through of the metal door found in the retail supermarket and liquor shop area suggested burglary. This also supports the suggestion of introducing the fire from inside of the building.

Though the building was too huge and it took more than an hour to burn down, it was strange none of the 10 victims appeared to have attempted an escape, most likely through the balcony or veranda or other means suggested that these people appeared to have been murdered by those responsible for the burglary and arson.

This was also supported by the position of the deceased body locations being four metres (4m) to 7m and furthest being 21m apart from inside the building, mainly the eastern part of the retail supermarket to southern (21m) wholesale area. These positions suggested the question of handicapped to escape by the victims and also confirms being murdered or tied up before setting fire to the building.

It appeared that the perpetrators, more than one or two people appeared to have accessed the main entry and exit door used after hours at the back area (east) to kill the 10 deceased, steal and set fire to the building.

The security guard Robin Micah who was posted at the back area of the building and was working from 6pm on 21st September to 22nd September Friday 2017, 6am appeared to have knowledge of who was responsible for the fire and death of the 10 deceased.”

40. According to this evidence, the deceased were either murdered or tied up before the building was set alight, incinerating them beyond recognition. This piece of evidence answers the question I raise from Kovi on the circumstances of the crime– this was a case where the murder was pre-meditated, vicious and brutal. The killing was in cold blood of innocent and defenseless or harmless persons with complete and blatant disregard for the sanctity of human life. The persons were either tied up in the building or already murdered when they met their horrific fate.
    
41. For the reasons stated above, I accept the States submissions on its aggravating and factors in mitigation. Additionally, Mr Kaluwin makes the apt reference to the time-honoured English maxim, “A person’s home is their castle.” The definition of this maxim is that “People enjoy the position of rulers in their own homes, and others have no right to enter without the householder's permission.” (dictionary.com). Imagine the terror these innocent people faced. Sleeping peacefully in the sanctuary of their home, only to wake up in horror to meet their painful and tortuous demise.
    
42. So, the question now is, would this be a case that warrants the death penalty? Whilst I accept that the Prisoner has mitigating factors, they pail into insignificance when they are balanced against the severity of the offence.
    
43. The Prisoner showed callous disregard for the sanctity of human life. However, this is not a court motivated by vengeance or revenge but built on the firm foundation of good conscience and basic human dignity in the application of laws. What I am saying is not mere platitudes, but premised on the Preamble of our Constitution, which says that we pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now. The Preamble then says that we reject violence to solve our problems.
    
44. National Goal One, goes on to say that:
    

“We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.”

45. What is the relevance of this? I say this because the death penalty should not and must not be seen as State sponsored revenge or a State sponsored apparatus to exact the Old Testament principle of justice of an eye for an eye and a tooth for a tooth. The Prisoner was an instrument of terror. However, if the application of the death penalty is not applied carefully, it will also become a State sponsored instrument of terror.
    
46. Papua New Guinea is a responsible member of the United Nations. Sections 38 and 39 of the Constitution compels the consideration of decision of the United Nations on the interpretation and application of human rights. The United Nations has called for a moratorium on the application of the death penalty. Papua New Guinea has voted against this resolution, no doubt because its laws provide for the death penalty for a number of offences including treason and wilful murder and it faces insurmountable challenges controlling violence in the country. In Papua New Guinea, whilst people have been sentenced to death, no execution has taken place. It seems that whilst the government of Papua New Guinea has officially rejected the moratorium, it has nevertheless on a de facto basis, observed the moratorium.
    
47. There will probably come a time when the legislature will ask itself whether the death penalty in the Criminal Code as sanctioned by s 35 of the Constitution sits well with the basic principles iterated in the Preamble of the Constitution, that is the principles of rejection of violence as a means to resolve conflict, the centrality of integral human development in Papua New Guinean law and the adoption of Christian principles. It is not my mandated function to enter into this debate, and I only make this statement in passing.
    
48. The upshot of all of this is that it has compelled me to weigh carefully whether there are any extenuating circumstances that militate against the application of the death penalty. In Ume, the Supreme Court held that the extent of the involvement of an offender must be considered carefully. I prefer Ume to Gimble on this point due to the fatalistic consequences of the sentence under consideration. I also apply the case authorities referred to by Counsel for the Prisoner, Mr Pokiton on this point.
    
49. This was a crime that could not have been committed by only one person. The evidence convicting the Prisoner were circumstantial evidence, one of which that was critical was that he said to the witness Joe Dasi (his first cousin) “They (meaning the accused and others) burned Splendid Star and killed 10 Chinese.” He said this twice to Joe Dasi. The extent of the involvement of the Prisoner therefore cannot be ascertained from this statement. Was he a watchman? Did he enter the building? Did he give information on the lay-out of the building to others and did not participate in the crime? These are unanswered questions, leaving unresolved the extent of the Prisoner’s involvement. This has persuaded me not to impose the death penalty.
    
50. Having considered Kovi, which referred to an earlier case of Hane, the sentence of life imprisonment is considered appropriate in circumstances where a wilful murder is committed in the course of committing a crime of violence such as theft, robbery, break and enter or rape; and any second or third murder. Of particular concern is that it happened in the deceased dwelling place.
    
51. This was a case where the murder was in the course of committing the crime of break and enter and there were multiple deaths. It was pre-planned and pre-meditated. This case falls within the category of life imprisonment in Kovi.
    
52. In considering the objectives of sentencing, as I said above, my inclination is towards an objective of sentencing that will separate the offender from the rest of society as the offender has disregarded the basic right that guarantees our existence as human beings and furthermore, it is this basic right that enables us to enjoy other rights and freedoms available to us – the right to life.
    
53. In exercising my powers under s 19(1)(aa) of the Criminal Code, after considering the relevant case authorities and the facts of this case and Counsel’s submissions, I sentence the Prisoner to life imprisonment for each of the 10 counts of wilful murder.
    
54. Due to the number of persons that have been killed in this crime, I recommend that if the Prisoner is ever considered for parole (and I am not suggesting that he should be or should not be) he should only be eligible for parole after he has served 40 years imprisonment.
    

Judgment on Sentence accordingly

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner