N10895
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS. 269, 270, 271, 272, 273 & 274 OF 2023

THE STATE

V

MAX KAHU, JUNIOR KAHU, PIDIEN UPITA, ALBERT JOHA, JASON JOHA and DOMINIC MARAKUS

Goroka:  Kaumi. J
2023: 15th, 26th May
2024:12th July

CRIMINAL LAW – Criminal Code Act 1974 -Section 299 Wilful Murder- Plea of Guilt-Group Attack on an unarmed and harmless man-Offenders used a gun, bush knives and bows and arrows – Man’s body cut to pieces – Revenge/Payback Killing - Offenders Main Perpetrators-Mitigating and Aggravating Factors –First Offenders–Prevalent Offence- Sanctity of life Wilfully and Blatantly Disrespected- Serious but Not in Worst Category for Offence of Wilful Murder.

CRIMINAL LAW – Court Sanctioned Sentencing Tariffs being Applied But Not Resulting in the Desired Outcomes- Not Prudent to Continue to apply such Tariffs to an Age-Old Problem And Expect A Different Outcome – In view of Changing Dynamics in Society today it is Incumbent Upon Criminal Sentencing Courts to be Ingenious and Proactive in Meting out Sentencing that are in Direct Correlation to the Changing Dynamics and Spike in Intentional Killing nowadays and not rely on Ineffective Tariffs – The Categorization of What is a Worst type of Wilful Murder and What Is Not Has the Unnecessary Effect of Dehumanizing And Devaluing Human Life.

CRIMINAL LAW – Five out Six Offenders escaped from Lawful Custody and Sentenced in Absentia- Constitution Section Section 37(5) (protection of the law) and Section 571 of the Criminal Code (presence of accused)   

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Separateness, Restitution or Rehabilitation are also relevant factors for consideration- Not Worst type of offence-Criminal Code Ch.262.

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

The six offenders pleaded guilty of one count of wilful murder of a man. The matter was for sentence. Five of the six escaped from lawful custody whilst awaiting sentence and sentenced in absentia.

Cases Cited:
Golu v The State [1979] PNGLR 653
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329
Ure Hane v The State [1984] PNGLR 105
Gimble v The State [1988-89] PNGLR 271 
The State v Arey Watul [1992] PNGLR 475
The State v Yapes Paege & Relya Tanda [1994] PNGLR 65
Lawrence Simbe v The State [1994] PNGLR 38
Clement Monumin v. The State (1997) SCR 56 of 1997 (unreported)
Public Prosecutor v Don Hale (1998) PGSC; SC564
Tony Imunu Api v. The State (2001) SC684
The State v Tumu Luna [2002] PGNC 131; N2205 (20 May 2002)
The State v Arua Maraga Hariki (2003) N2332
Masoliyu Pyakali v. The State (2004) SC771
The State v Frank Johnston, Murray William and Moses William (No.2) (2004) N2586
The State v Ben Simakot Simbu (No.2) (2004) N2546
John Konobo v The State (2004) N2500 
The State v Augustine Lausi Ogi (2004) N2761
Saperus Yalibakut v The State (2006) SC890
State v Komboli [2005] PGNC 95 
Manu Kovi v The State (2005) SC789
Ume v The State [2006] PGSC 9; SC836 
Thress Kumbamong v The State (2008) SC1017
Erebebe and Togot v The State [2013] PGSC 9; SC1228 
The State v Tumaris (2016) N6391
The State v Hapot (No.2) [2016] PGNC 253 
The State v Peter [2022] PGNC 11; N9415
The State v. Ian Napoleon Setep (1996) N1478

Legislation Cited: 
Constitution of Papua New Guinea 
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel
Mr.Kathwa Umpake and Ms. Everlyn Nema-Kale, for the State
Ms. Carolyn Bomai, for the Offenders

SENTENCE

12th July 2024

1.	KAUMI J: This is a decision on sentence for a group of men who on the 15 May 2023 pleaded guilty to one count of wilful murder contrary to Section 299 (1) of the Criminal Code Act Chapter 262. 

2.	Whilst awaiting sentence at the Bundaira Corrective Institution, Junior Kahu, Pidien Upita, Albert Joha, Jayson Joha and Dominic Marakus escaped.  Max Kahu remained in lawful custody. I have viewed the Notifications of Escape for them provided by the Commander of the said prison. The obvious question that arises at this juncture is whether the trial should proceed in terms of their sentence in their absence. In answering this question, I firstly consider what the law says about it and then what the courts have said regarding this matter.

LAW

3.	There are provisions in both the Constitution and Criminal Code which provide for situations where an accused absents himself without leave during the trial.

4.	Firstly, the Constitution at Section 37(5) (protection of the law) states:

Except with his own consent, the trial [of a person charged with an offence] shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

5.	Section 571 of the Criminal Code (presence of accused) states:

(1)	Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court—

(a)	may order him to be removed; and
(b)	may direct the trial to proceed in his absence.

(2)	The court may, in any case, if it thinks fit, permit a person charged with a misdemeanour to be absent during the whole or any part of the trial on such conditions as it thinks proper.

(3)	If the accused person absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court.

6.	The Supreme Court and National Courts have considered this issue and allowed the trial to proceed only when the court is satisfied that certain conditions exist. 

7.	Firstly, the Supreme Court in Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329, Kidu CJ, Woods J, Barnett J, in addressing this issue stated that the right entrenched by Section 37(5) of the Constitution was not absolute. That an accused person can expressly or by implication consent to a trial going ahead in their absence. However, that the court must be satisfied that the accused has elected to be absent, through caprice or malice or for the purpose of embarrassing the trial. Mere failure to appear is not by itself implied consent. The circumstances must unambiguously show that the accused is consenting to the trial proceeding in their absence.

8.	Secondly, Kandakasi. J (as he then was) in The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586 convicted three young men of attempted murder and one of them, Frank Johnston, failed to turn up to the court after the State closed its case, i.e. before the verdict was handed down. That situation continued throughout the rest of the trial. In the judgment on sentence, his Honour stated:
“As for Frank Johnston, he failed to turn up for his address on sentence. This continued from his failure to attend the rest of the proceedings after the close of the State’s case. The Court therefore decided to proceed in his absence pursuant to Section 571 of the Criminal Code. That continues to be the case. For the purposes of sentencing, I am of the view that by his own conduct, he decided not to address the Court. Therefore, unless, he is able to show very good reason why this should be re-visited the Court’s decision on sentence herein will also apply to him. For I am of the view that, one can only claim his right if he is prepared to exercise it at the relevant time. If there is a failure to do that, it amounts to an acceptance by his conduct that he will accept whatever orders or decisions the Court will arrive at. The people through the State do not have money readily available to throw away in such circumstances. Likewise, the Court does not have the luxury of more time to reconvene for such a person when he fails without good cause, to exercise his or her rights at scheduled Court hearings after having participated in the initial part of the proceedings, particularly in a circuit setting such as this”.

9.	Thirdly, Cannings. J in State v Komboli [2005] PGNC 95 in considering what the Supreme Court had said in the Kavali (supra) case and the National Court in the cases of The State v Frank Johnston, Murray William and Moses William (No 2) (supra), The State v Arey Watul [1992] PNGLR 475, John Konobo v The State (2004) N2500 Davani J and The State v Augustine Lausi Ogi (2004) N2761, Davani J , noted that all had ordered the continuation of the trial of an indictable offence in the absence of an accused who either escaped from custody or not attended the trial and said:

“All the above cases show that the principle that a trial should proceed in the presence of an accused person is not an absolute one. An accused person can give up his right by escaping from custody (if he is in custody, as happened in Watul, Konobo and Ogi) or by simply not turning up (if he is appearing from bail, as in Johnston). In either situation the accused is taken to have impliedly consented to the trial continuing in his absence. 
In the present case it is undisputed that Justin Komboli escaped from Lakiemata correctional institution after the commencement of his trial. Applying the test laid down in Kavali’s case I was satisfied that he elected to be absent, through malice and for the purpose of embarrassing the trial. A person who escapes from custody is, in the absence of an explanation or apology, unambiguously showing contempt for the rule of law and consenting to the trial proceeding in their absence.
Therefore, I rejected the application that the trial in relation to Justin Komboli be vacated and ordered the trial against him and Benjamin Bin and Gibson Salkut proceed.
I indicated that if it were subsequently shown that Justin Komboli had not deliberately escaped, eg if he had been abducted from the gaol, then that would seem to be a good reason to set aside any decisions made adverse to his interests in his absence. However, the natural inference to draw when the court is told that a person has escaped from lawful custody is that it has been done deliberately. It sends the wrong message to the community if the court puts cases on hold just because someone has escaped”. 

10.	In considering this issue in the immediate case, and applying the test laid down in the Kavali case, I am satisfied that in as far as the offenders who escaped are concerned:

A. they elected to be absent, through malice and for the purpose of embarrassing the trial. 
B. They have not offered an explanation or apology and are unambiguously showing contempt for the rule of law. 
C. They are consenting to the trial proceeding in their absence. 

11.	For these reasons I shall proceed to sentence them along with Max Kahu. What this effectively means is that Junior Kahu, Pidien Upita, Albert Joha, Jayson Joha and Dominic Marakus will now be sentenced in their absence or in absentia in accordance with the laws of this country, and if they are apprehended in future, they are to be immediately taken to the nearest Corrective Institution to start serving whatever term of imprisonment this court imposes on them today.

12.	I read their respective committal depositions and after satisfying myself of the evidence contained therein meeting the essential elements of the offence, they pleaded guilty to, I convicted all six offenders. 

13.	The relevant issue is what should be the appropriate sentence for the offenders.

14.	The facts giving rise to the charge are as follows.

15.	On the 10th of September 2022 at Ikana village in the Obura-Wonenara District the deceased, one Aiaitaro Atukeni and one Jack Kahu fought after getting drunk. Jack Kahu is related to the accused persons. During the fight Jack Kahu was beaten up. After the assault Jack Kahu’s conditioned worsened so he was transported to Kainantu Hospital on the 11 September 2022. 

16.	In the meantime, the offenders went to the garden of the deceased where he was sleeping with his family. They were armed with gun and bush knives. The offender Junior Kahu was armed with the gun. They woke the deceased Aiaitaro Atukeni up and took him and his family away to Jack Kahu’s house and held him captive there. Jack Kahu passed away on arrival at Kainantu Hospital. When the news of Jack’s passing reached home the offenders attacked the deceased and gunned him down. He was chopped up to pieces with bush knives ensuring he died instantly. The offenders attacked and inflicted fatal injuries upon the deceased with intention to kill him. The State alleged that all the offenders acted in concert with each other therefore they are principal offenders by virtue of Section 7 of the Criminal Code Act Chapter 262.

17.	Their respective Antecedent Reports provided to the Court by the State show that all the offenders have no prior convictions.

18.	When I administered allocatus to the offenders, Junior Kahu, Pidien Upita, Albert Joha and Jayson Joha, all four said very similar comments as in saying sorry, to God, Court, Lawyers and the complainant for they had done and asked for the leniency of the court and that they would not reoffend if they were sent home. Max Kahu and Dominic Marakus said similar things as the other four offenders in saying sorry for what they did but I note that they never expressed any remorse whatsoever to the complainant.  

19.	The offenders all pleaded guilty and so I will give them the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution Saperus Yalibakut v. The State (2008) SC890. 

20.	Ms. Bomai of counsel for the offenders, in submitting on their behalf referred to the facts of the matter and the relevant issue, highlighted matters that went to their mitigation and those in their aggravation, their personal details, the relevant law, their comments in allocatus and their respective Pre-Sentence Reports.

21.	She submitted that the circumstances of the matter placed it in the second category of the Manu Kovi v The State (2005) SC789 case for wilful murder cases and further that compensation had been paid by their relatives to the relatives of the deceased.

22.	The gist of her submission was for the Court to exercise its unfettered discretion in sentencing matters considering the mitigating factors. Thress Kumbamong v The State (2008) PGSC 51; SC1017 

23.	Further that Section 19 of the Criminal Code gave it discretion to impose a lesser sentence rather than the prescribed maximum penalty of life for this offence.

24.	She submitted that the pre-trial custody period be deducted from the head sentence and suspension of the sentence or any part of it was discretionary as per the Public Prosecutor v Don Hale (1998) PGSC; SC564. As per the Supreme Court cases of Thress Kumbamong v The State (supra)and Public Prosecutor v Don Hale (supra), suspension or part or full sentence is a matter of discretion vested in the court. That regardless, of a community-based report the court still had its vested unfettered sentencing powers to determine sentencing for any offence including wilful murder.

25.	Senior Counsel Mr. Umpake for the State in highlighting the aggravating factor in the case submitted that these aggravating circumstances made it a serious case of wilful murder. That these circumstances place it in the fourth category of the Manu Kove (supra) category for wilful murder cases. Further that aggravating factors outweighed the mitigating ones and therefore submitted for the maximum penalty of life imprisonment as a deterrence to deter payback seekers.

26.	Section 299 of the Criminal Code provides:

299. WILFUL MURDER
	(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 life.
	Penalty: Subject to Section 19, imprisonment for life.’

27.	Section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.

What is the starting point?

28.	Going by the sentence range in Ume v The State [2006] PGSC 9; SC 836 (19 May 2006) the proper starting point in this case is life imprisonment. 

What types of wilful murder may be categorized as in the worst category?

29.	The Supreme Court in the case of Ume v The State [2006] PGSC 9; SC 836 (19 May 2006) categorized what circumstances would warrant the maximum penalty for wilful murder which at that time was the death penalty, it has since been abolished and replaced by life imprisonment (Criminal Code (Amendment) Act 2022) No. 10 of 2022, and I reproduce its pertinent comments:

“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 wilful murder case which is pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless 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, “consciousless”, “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.
 In our view, given the English experience and in particular the United States experience, the Parliament may wish to consider prescribing the types of aggravating circumstances in wilful murder cases which warrant the death penalty. It may also consider prescribing mitigating circumstances or perhaps re-introducing the “extenuating circumstances” provision. In the absence of such legislation, we would suggest the death penalty may be considered appropriate in the following types of cases: -

1.	The killing of a child, a young or old person, or a person under some disability needing protection.

2.	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3.	Killing of a leader in government or the community, for political reasons.

4.	Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

5.	Killing for hire.

6.	Killing of two or more persons in the single act or series of acts.

7.	Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

8.	The prisoner has prior conviction(s) for murder offences.

30.	Further to assist this categorization is how the courts have described these types of worst category murders in terms such as, “barbaric, most horrific, very gruesome, brutal, so cruel and reprehensible, bizarre, terrible, pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, with a complete and blatant disregard for the sanctity of human life, with no motive or lawful motive, unthinkable, consiousless, senseless, pitiless, unnecessarily  tortuous” etc.  

31.	I highlight some cases in which the Courts have imposed the maximum penalty of death or life imprisonment (whichever was applicable at the time).

32.	Erebebe and Togot v The State [2013] PGSC 9; SC 1228 (2 May 2013). The Supreme Court in this case made pertinent comments regarding the type of facts of the case which placed the wilful murders of 5 adults and 4 children into the worst category. It stated that the facts of the murders were required to be restated so that their severity can be appreciated. The facts of these murders were that 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." 

33.	The Supreme Court noted that prior to the ambush 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. 

34.	The Supreme Court was satisfied that the payback killing of innocent children and the ambush killing, akin to a highway robbery, fell within two of the categories suggested by Bredmeyer J in Ure Hane v The State [1984] PNGLR 105 as being within the most serious kinds of wilful murder. To the extent that the trial judge found that the facts of this case do not fall within those categories, we are of the respectful view that he erred.

35.	Further that it was in no doubt that the premeditated ambush and slaughter of nine persons including the ritualistic torture and killing of four children under the age of six in the most barbaric and painful manner, places these wilful murders into the worst category.

36.	Further that when comparing the facts of that case to the factors contained in the statement in the immediate case that should be present for the imposition of the death penalty to be appropriate, the court was of the view that the facts have met those factors. The Supreme Court said the murders, especially of the four children, were premeditated, vicious, brutal, in cold blood and of innocent and defenceless or harmless persons, with a complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the lives of those persons. The Supreme Court said murders were unthinkable, consciousless, senseless, pitiless and certainly unnecessarily tortuous. Further, as mentioned, the counsel for the prisoners has conceded that the murders come within the worst categories listed in Ume v. The State (supra).

37.	The Supreme Court as well in this case said that from its research of the reported decisions, it was apparent that the horrid, tortuous murders of the four children, together with the shooting of the five adults, constitutes the worst wilful murders that have come before this Court. The court satisfied that the severity of the crimes was such that whatever the extenuating and mitigating circumstances, the degree of moral and criminal culpability and the degree of cruelty exhibited was so grave and reprehensible that the prisoners should have been sentenced to the maximum punishment in respect of the murders of the four children, and life imprisonment in respect of the five adults. It was of the view that the sentences imposed by the trial judge were out of reasonable proportion to the circumstances of the crimes and inferred that some error must have occurred in the exercise of the trial judge's sentencing discretion. Consequently, the cross appeal against sentence was upheld.

38.	The State v Arua Maraga Hariki (2003) N2332 per Salika. J (as he then was). His Honour imposed the death penalty on the offender. The facts of this case were that the offender killed two young men he had been drinking alcohol with by strangulation. The evidence did not directly show that the offender killed both but only one of them. The Court found that he killed the other as well based on circumstantial evidence, pointing to such a conclusion. Salika J imposed a life sentence for the wilful murder of the boy who was strangled by the prisoner. As for the wilful murder of the boy who was fast asleep in the car, there was no reason to kill him, and he sentenced the prisoner to death.

39.	The State v Ben Simakot Simbu (No.2) (2004) N2546 per Kandakasi. J (as he then was). The facts of the matter being that the offender found the deceased woman sitting with her two years old child and asked her to give him a live chicken on credit. She refused the first time, so he repeated his request two more times. On the third, he got angry and grabbed the woman, they struggled but he overpowered and threw her to the ground and had forceful sexual intercourse with her. After this he picked up a strong piece of iron that was there and hit the woman on the head as she lay on the ground with the intent to kill her. She died instantly. He turned his attention to the woman’s child who was by then crying and watching helplessly and proceeded to hit him on the head as well, killing him instantly. His Honour stated that there could be no argument that this was one of the worst cases of wilful murder in serious aggravating circumstances. He continued that that was a case of cold-blooded murder of two innocent and unarmed persons, who were in no position to cause any harm or danger to him. That these had happened immediately after the commission of another serious offence, namely, rape of a married woman who was with her child. His Honour imposed the maximum of death penalty for the double wilful murders.

40.	Masoliyu Pyakali v. The State (2004) SC771 - the appellant and others had set up a roadblock, waited in ambush and attacked a businessman, his wife and their infant child. They used guns, bush knives and axes to cut up the three family members. The appellant was sentenced to life imprisonment. The Supreme Court dismissed his appeal and stated:

"In these circumstances, the highest penalty for wilful murder -the death penalty was called for. However, the learned trial judge imposed the lower penalty of life imprisonment. If the State cross-appealed against sentence, we could increase the sentenced to the maximum death penalty. We note the Court does have the power under s. 23 (4) of the Supreme Court Act to increase sentences. We are inclined to doing that here. Instead, we issue a warning as we have done with some of the cases we have heard and determined in the same circuit that in future, we will not hesitate to do that".

41.	The State v Peter per Narakobi. J [2022] PGNC 11; N9415 (4 February 2022), the offender was in the company of some accomplices broke into a shop in Lorengau, Splendid Star, stole an undisclosed sum of money and set the building alight, killing 10 foreign nationals, Chinese who were either trapped inside or incapacitated so they could not escape the inferno and were all burnt to death. He was convicted after a trial and His Honour sentenced him to ten (10) life sentences for each count of wilful murder for which he was convicted of.

42.	Tony Imunu Api v. The State (2001) SC684 - the appellant murdered an innocent student by smashing his skull with a blunt object and concealed his body. The appellant was sentenced to life imprisonment. The Supreme Court dismissed his appeal and stated:

"We are of the opinion that that this was a worst type of wilful murder. A 14-year-old school student has his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case of warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view. We therefore hold the view that the prisoner should have been sentenced to death.
However, we note that the State did not appeal against the life sentence…..
….. 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 categorised 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."

43.	Clement Monumin v. The State (1997) SCR 56 of 1997 (unreported) - the appellant chopped a two-year-old child on the head with an axe and killed him because of an argument with the child's father over a block of palm oil. The Supreme Court refused the appeal against the sentence of life imprisonment and stated:

"When we consider the terrible facts of the present case, that is the premeditated intentional killing of a totally innocent two-year-old child, we are somewhat surprised that the trial judge did not impose the maximum penalty".

44.	The State v Hapot (No.2) [2016] PGNC 253– This case involved the wilful murder of an adult female aged 28 years and her two female children aged 10 years and eight years. The victim mother and daughters had their necks slashed through and other stab wounds, specifically with oesophagus and all major blood vessels to the brain severed, two received blunt object wounds to the head peeling the outer layer of skin from the skull and the bodies thrown into the sea. The offender a 27–28-year-old man and committed the offences in an apparent revenge attack for rejection of his sexual advances by the mother and sentenced to 60 years in hard labour and two sentences of penalty of death.

45.	Ume v The State (supra) The brief facts are that on 2 December 1995, there was a confrontation amongst the village people at Pagalau Village. In that confrontation, one Patrick Reu was killed. The people suspected one Francis Reu killed him and decided to avenge Patrick’s death. A search was conducted by the village people to find Francis and kill him. The Appellants were amongst a group of nine (9) men who set out to search for Francis. They went to his house but did not find him there. Instead, they found his mother there, the late Agnes Banovo. They asked her where Francis was. When she could not tell them, they abducted her and “brutally assaulted her by raping her and then … chopped her so viciously that she died.” State witnesses identified the Appellants were amongst the group of nine (9) men who attacked and killed her. The appellants appealed against death penalty for wilful murder imposed on them by the trial court for this pay-back killing of innocent woman by this group of men. The Supreme Court found that there was an error in exercise of sentencing discretion and allowed the appeal, quashed and substituted it with imprisonment for life.

46.	The State v Tumu Luna [2002] PGNC 131; N2205 (20 May 2002) Deceased shot with a gun by the offender and convicted following a trial. The court did not consider this wilful murder to be amongst worst category of wilful murders and therefore considered the maximum penalty of death not appropriate so imposed life imprisonment as the appropriate penalty.

47.	The State v Tumaris (2016) N6391) per Kangwia. J- The accused was found guilty after trial of wilful murder of a policeman. The accused was a wanted person who was on the run. The victim and others surrounded the house in which the offender was and asked him to accompany them to the main village to deal with the allegations against him. On the way, the offender who was walking immediately behind the victim swung his bush knife and chopped the deceased a number of times. The deceased died instantly from massive blood loss. A post-mortem revealed that the deceased sustained multiple knife wounds to several parts of the body including a severed spinal vertebra. The Court noted that the law places wilful murder of policemen in the line of duty in the worst category of wilful murder attracting the maximum penalty and that the case was a coldblooded and cowardly killing. It therefore sentenced the offender to life imprisonment.

48.	The above cases all demonstrate that that the Supreme and National Courts view wilful murder offences very seriously particularly in circumstances which they described in the various adjectives I have already alluded to, hence categorizing them as in the worst type of category.

49.	The instant matter before me does have very serious circumstances however it does not fall into the worst-case category to attract the maximum penalty as the facts are not like the cases I have referred above which attracted the maximum. Going by the yardstick in the Ume case this case I am of the view it attracts a determinate term of years.

50.	The process of deciding what should be an appropriate head sentence entails the court considering the circumstances in which the offenders have committed the offence and the result of which will come the factors in their aggravation as well as those in their mitigation.

51.	Taking into consideration the factors in their mitigation, I note the respective pleas of guilt of the offenders, their lack of prior convictions, their co-operation with police in their investigations, the presence of de facto provocation and their comments in allocatus.

52.	In consideration of the aggravating factors, I outline them for the purpose of highlighting the severity of the offence:

A.	The offence is a prevalent offence in the community today. 
B.	The victim was taken against his will at gun point as a captive, from his garden house along with his family by the offenders in company to the house of the offender Max Kahu’s brother’s (Jack) house. This brother was the one who had been assaulted by the victim and who was taken to the aid post for treatment but died there. 
C.	The offence was pre-meditated. 
D.	Dangerous weapons were used in the assault i.e. a gun, bows and arrows and bush knives.
E.	The offenders acted in concert with each other in the commission of this offence.  
F.	The victim was shot then he was chopped into pieces to such an extent that his body parts were scattered around the floor of the house of the deceased, Jack Kahu. His body parts had to be collected, washed, placed into a plastic bag, then put into a coffin. The victim’s body was dismembered to such an extent that his family were not allowed by his brothers to view his desecrated remains. The dismembering of the victim’s body into pieces by the offenders shows the sheer brute force and savagery involved and the depth of their enmity for the victim not to say their intention to terminate his life. Their actions were not too different to that of a butcher the only difference being that the body was human. 
G.	The circumstances under which the victim was held captive by the six-armed offenders are somewhat bizarre. He was held captive in the home of the deceased, Jack Kahu while he was still alive and at the Omaura SDA Mission Aid Post. Jack died there and his body was transported back to Ikana village. When the offenders heard that their relative had died, they then proceeded to shoot him in the stomach just above the hip then dismember his body into pieces, an ordeal I can only describe as bizarre and horrific. I can only imagine the uttermost fear and terror the victim must have been feeling whilst waiting for news of Jack’s fate, knowing only too well that the latter’s demise would result in his. 
H.	The offenders were all principal perpetrators and ran away after the fact and made no attempt to mitigate the effect of the attack.
I.	The offender, Max Kahu, is a church elder in his SDA church and to that extent he is sophisticated person who should have known that the law of the country and the Bible deemed his actions unlawful and sinful.
J.	Another aggravating factor I find disturbing is that after the offenders were informed that the offender Max Kahu’s brother, Jack had died, they were in a perfect position to take their victim to the police at the Aiyura Police Station so he could be duly processed i.e. detained and investigated by police. Afterall they were holding him captive in Jack’s house and were all fully armed with an array of weapons and were six in number against one unarmed and harmless man. But they chose jungle justice over the justice stipulated by our Constitution and in doing so conscientiously chose to intentionally kill him.
K.	I will also add that there was method in this mayhem as the evidence shows that the offenders after learning that their relative, Jack Kahu, had been taken to the aid post for medical treatment because of an altercation between himself and the victim, and obviously after a meeting of minds went to the latter’s garden house and took him captive at gunpoint along with his family to Jack’s house. At Jack’s house the victim knowing his life was in great peril still had the presence of mind to argue for his family’s release and was successful to that end. The evidence shows that Max then told his community that the victim was being kept captive in Jack’s house awaiting news of Jack’s fate and that if Jack died, the victim would suffer a similar fate.  Then upon receiving news of Jack’s death, the offenders put into effect what Max had told the community. 

L.	Heavily weighing against the offenders was their total lack of respect for the “sanctity of life” when they intentionally killed the victim.

“Sanctity of Life”

M.	The total lack of respect for the “sanctity of life” is a special aggravating factor. The offenders in this case had no respect whatsoever for the sanctity of life when they decided to play, prosecutor, judge and executioner. The phrase “sanctity of life” has become cliché to the extent of being commonplace. Nevertheless, it is still very relevant to use to reinforce, reemphasis and remind all of us of just how vulnerable the human life can be. It is my view that the Courts must place special emphasis on the “sanctity of life” especially where there has been an unlawful and intentional termination of a single life in circumstances that could be described as “barbaric, bizarre, horrific and reprehensible” etc, but due to the above categorized circumstances cannot be placed in the worst category. Further the Courts need to be mindful of other relevant and important considerations and not be limited to just the peculiar circumstances of a case and that of the offender. I make these comments in view of the changing dynamics in our society today which has seen a great proliferation of both side arms and powerful unregistered and illegal assault rifles and explosive devices which has resulted not just in singular deaths but mass killings, the likes of which we have never witnessed before in our nation. Indeed, the Supreme Court whilst the maximum penalty was still the death penalty (but nevertheless still relevant and applicable), stated in Ume v The State (supra), “that because the death penalty is the ultimate penalty under the Criminal Code, the Court should not restrict its consideration of relevant factors to the factual circumstances of the case and the offender’s personal circumstances. It should also consider other relevant matters such as community concerns over prevalence of violent crimes and the need for strong deterrent and punitive sentence, public or private morality concerns, customary beliefs and values of both the deceased and offender’s customary groups which influence the killing and the views of the victim’s relatives”. 

N.	My fear is that with the categorizations by the Courts of what might be deemed as the worst type of wilful murder and what might not be, we are starting to dehumanize and devalue life. I pose a question here, is the loss of one human life cheaper than the loss of multiple lives. My strong view here is that one single human life is just as important as 57 others. The dilemma is in knowing how one case is worse than another. The courts have discussed this dilemma and Kandakasi. J (as he then was) in The State v Ben Simakot Simbu (No.2) N2546 (25 March 2004) discussed it in the following manner:

“On first glance, it might appear, simple but when it comes to actually deciding whether a case is worse or not, it is much more difficult. My brother, Justice Sevua spoke of that difficulty in The State v. Ian Napoleon Setep  in these terms:

"Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, in my view, to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."

Earlier Woods J. in The State —v- Yapes Paege & Relya Tanda,2 in view appropriately, observed:

"But how can wilful murder, after the clear, statutory distinction of it from two other levels of unlawful killings — murder and manslaughter — lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life."

My brother Kirriwom J. made a similar remark in The State v. Godfrey Edwin Ahupa3 where he said:

"... when you look at all these cases of deliberate and calculated murders, whether they involved pre-planning or not, whether they were carried out swiftly and quickly or slowly and in the most gruesome and barbaric or agonising manner, or whether the victims are gunned down, axed, knife or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated."

As Woods J. observed correctly in my view, judges have had a much difficult time trying to say when a wilful murder is worse, and how they have avoided doing that. This is evident for example in Ure Hane —v- The State,4 where one Judge recited a list of different categories of wilful murders and the other two focused on the extenuating circumstances.”

O.	In my view the premature demise of one person by intentional killing must be condemned in the strongest terms and met with the stiffest punishment available by law and not just in multiple killings. For the Courts to reinforce and reemphasis the “sanctity of life” it must become proactive, go beyond the “tariffs” and mete out sentences that will remind members of the community of the essence of the “sanctity of life” and the need to respect it. The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38, 30 years ago, stated that each case must be considered on its own facts and circumstances and so it follows that sentencing courts must sentence according to peculiar circumstances of a case before it and in doing so not be inhibited or restricted by “tariffs”. Having said this, I note as other courts have said that there is nothing legislated against what might be deemed by some to be “quantum leap” type sentences. The Kovi case set “tariffs” or guidelines to be used for sentencing in homicide cases and the courts have continued to religiously refer to and apply them conversely to what the Supreme Court later stated in Kumbamong (supra) with respect to these very “tariffs”. Now given these opposing Supreme Court views the obvious question that arises here is whether these “tariffs” have had the desired outcome of stemming the occurrences of intentional killings in this country. If the recent spate of mass killings by tribesmen armed with high-powered assault rifles is the barometer of the effectiveness of these “tariffs” then is it logical for the courts to continue to apply these same “tariffs” to this same age-old problem and expect a different outcome. Surely, the courts must become ingeniously proactive with its sentencing instead of relying on ineffective “tariffs”. It is very obvious that since cases like Hane (supra), Kovi (supra), Ume (supra), Erebebe (supra) etc there has not been any reduction in the numbers of intentional killings but rather the opposite is the norm nowadays, where the unlawful taking of life has continued to occur and rise at an unabated rate and in more dramatic fashion if I may add, for example, the early morning killing of 15 mothers and children in a 30-minute murderous spree, just a few years ago, and more recently in 2024, an ambush that resulted in killing of 57 men and boys and wounding of many others, all in a single day and further the sharp escalation of sorcery related killing more often against disenfranchised segments of the community in certain regions of this nation. The nature of such killings has attracted both national and international outcry and condemnation. In my humble opinion, like-minded people in this country have not and are not deterred at all by the Court’s incremental increase of penalties over the years, when they decide to embark on revenge missions, ambushes, random killings or the torturing and killing of females suspected of sorcery, rather the macabre has become the order of the day to the extent that people have no qualms at all about intentionally ending a person’s life. And one reason for this lies with the court and the type of sentences it has continued to impose in line with these “tariffs”. If the fundamental basis of society is human life and if the courts are obligated by the Constitution of this country to protect it then my humble but adamant view is that the time has arrived for the courts to seriously revisit and look at the sentences it has been imposing for all three offences of homicide and sentence accordingly if one reason, to reassure the people of this country that their lives are priceless, appreciated and will be protected at all costs within the parameters of the law by stiff appropriate sentences. I add that today the police are undermanned and outgunned by lawless members of the community making it is imperative upon the courts to play their part and respond in kind to intentional murders involving both single and multiple victims and increase sentences in direct correlation to the spike in the occurrences of intentional killings in this country. I am fortified in my thoughts by what the Supreme Court said in Acting Public Prosecutor v Don Hale (1998) SC 564 that “It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG”. 

53.	Lastly, I am somewhat mystified by the compensation that was paid which in my view is hopelessly inadequate, ridiculous and would be ludicrous if this matter was not so serious. With the compensation of one chicken, one goat, one cooking pot, two copper dishes, some clothes, some food stuff and K800.00, totally over K3,500.00, I am forced to ask, has life become so cheap. I understand that this payment was to restore peace in the community, however I was not made any wiser of whether the custom in the locality of the offenders is such that you can go and intentionally kill a person and then pay a chicken and a goat amongst other items and life returns to normal as though nothing happened. I acknowledge the payment, but I place very little weight on it. Perhaps an explanation for the amount of compensation paid can be found in what the offender Max Kahu told the police in his record of interview that after they had killed the victim, he informed the elder brother of the victim that because the latter’s brother had killed his brother, Jack, and so the victim was killed in return making it fair, and the victim’s elder brother agreed to him. If the custom in this area allows for the practise of tooth for a tooth and eye for an eye, then such measly compensation is paid then in my opinion it is a barbaric and repugnant custom, totally against the principles of humanity and totally against the dictates of Schedule 2.3 of the Constitution.
 
54.	Having considered the circumstances of this case in their entirety I must say that were it not for their respective pleas of guilt and the presence of de facto provocation I would have had no hesitation whatsoever in imposing the maximum penalty on all the offenders.

55.	I do not differentiate the roles the offenders played as I consider they all played equal roles in intentionally killing the victim.

56.	Having carefully considered all the facts and circumstances of this case, I am of the view that the offenders should be given the unqualified loss of all freedom that comes with long determinate sentences to deter other like-minded persons in the community who might be harbouring such murderous inclinations.  The sentence must be such that the offenders serve a substantial term of their sentence in prison.

57.	His Honour, Kirriwom. J stated in The State v Alphones Hapot (No.2) (supra) “…because I felt that falling short of death penalty, I would like to see this offender serve a substantial term of his sentence in prison, not hijacked by an early release program that has no regard or concerns underpinning the reasons for sentencing of the prisoner concerned to such a long term of incarceration”.

58.	I share similar sentiments in view of the “one third” effects of both parole and remission stated as well by His Honour where he explains in the sane case:

“It is for this reason, notwithstanding the sentencing guidelines in Manu Kovi v The State (2005) SC789, where it comes to imposing the maximum penalty possible, I prefer fixed or determinate terms to indeterminate terms because using simple arithmetic calculations of one third to know the minimum period to be served for parole eligibility of a prisoner, the sentencing authority knows how long the prisoner is going to serve before parole catches up with him. For example, if I impose a prison term of 60 years, I know that with one third remissions taken off that prisoner’s sentence the moment he enters the institution under the Correctional Services Act (which is 20 years of his sentence taken off), he is going to serve 40 years in prison, if he does not opt for parole and if he maintains a clean record in his behaviour, and then discharged. However, if I sentence him to 60 years and he opts for parole after serving one third of his 60 years, he must serve at least or a minimum of 20 years in prison, before he can be released to serve the rest of 40 years outside the prison”.

59.	The head sentence therefore for all six offenders is sixty (60) years imprisonment with hard labour.

60.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length, or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

61.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

62.	In the exercise of my judicial discretion, I have decided to deduct the period the offender, Max Kahu spent in in custody on remand and did not escape. I do not deduct the time spent in remand by the other offenders as they willingly chose to escape rather than wait for a finality of their matter in the form of a sentence.

63.	The Pre-Sentence Report does not recommend suspension of any kind and I add quite wisely as the people responsible for this “barbaric and horrific” intentional killing of another human being do not deserve discounts of any kind in terms of reduction of sentence.
 
64.	In this matter the notions of sentencing of retribution, separateness and deterrence in my view clearly hold sway over that of rehabilitation.

65.	I do not suspend any part of the sentence.

SENTENCE

66.	The orders of the Court are as follows:

(a)	The offender Max Kahu is sentenced to sixty years imprisonment with hard labour.

(b)	A period of one-year (1) and nine (9) months is deducted from the offender Max Kahu for time spent in pre-trial custody.

(c)	The offender Max Kahu will effectively serve 58 years three (3) months in hard labour.

(d)	The offenders Junior Kahu, Pidien Upita, Albert Joha, Jayson Joha and Dominic Marakus are sentenced to sixty years (60) imprisonment with hard labour.

(e)	No deduction is made for the time the offenders Junior Kahu, Pidien Upita, Albert Joha, Jayson Joha and Dominic Marakus spent in pre-trial custody.

(f)	The offender Junior Kahu, Pidien Upita, Albert Joha, Jayson Joha and Dominic Marakus will effectively serve sixty (60) years imprisonment in hard labour.

(g)	Orders to this effect shall issue forthwith.

Sentence accordingly.

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