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State v Raphael (No 2) [2002] PGNC 143; N2181 (21 February 2002)

N2181

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 907 of 2001

THE STATE

-V-

THEO RAPHAEL (N0.2)

WEWAK: KANDAKASI, J.
2002: 19th, 21st of February

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Wilful murder - Dispute over land - Repeated attacks with intent to kill when deceased was already disabled - Prisoner found guilty after trial - First time offender - Categories of wilful murder considered - Case not warranting maximum penalty of death - Sentence of 35 years imprisonment imposed - ss.19 and 299 Criminal Code.

FACTS:

The prisoner was found guilty of wilful murder after a trial. He killed the deceased over a land dispute. He planned the murder and executed it. The prisoner was a first time offender and has had no bad antecedent.

Held:

1. Case not falling into worse category of wilful murder as it was not committed in aggravating circumstances such as pursuing another illegal purpose like robbery.
   
2. A term of years sentence is appropriate having regard to the prisoner being a first time offender and the absence of any serious aggravating circumstances.
   
3. A sentence of 35 years in hard labour is inappropriate.
   

Cases cited:
Goli Golu v. The State [1979] PNGLR 653

Ure Hane v. The State [1984] PNGLR 105
Avia Aihi No. 3 v. The State [1982] PNGLR 92
The State v. Darius Taulo (unreported judgement) N2034
The State v. Ian Napoleon Setep (unreported judgement) N1478
The State v. Andrew Keake (unreported judgement) N2079
The State v. Godfrey Edwin Ahupa (unreported judgement) N1789

Counsel:

Mr. M. Ruari for the State

Mr. M. Mwawesi for the Accused

21st February 2002

KANDAKASI J: On Thursday last week (14th) I found you guilty and convicted you of the willful murder of one Ronald Ikiakdu contrary to section 299 of the Criminal Code. That was after a trial with submissions on the 8th and 11th of this month. I then administered your allocutus and heard submissions from both your lawyer and that of the State as to the kind of punishment this Court should give you. After that, I reserved a ruling on your sentence.

Relevant Facts

The relevant facts are set out in my judgement on verdict. I need not repeat them save only to point out the factors I consider important for the purposes of determining an appropriate sentence for you. In that respect, I note the following factors relevant:

1. You had an on going dispute over a piece of land with the deceased.
2. There is no evidence of you taking that dispute to the village court in your area or the village leaders and elders to help resolve it for you.
3. On the day of the murder, you set out to kill the deceased by arming yourself with a spear and bush knife and going to the deceased house.
4. On finding that the deceased was not home, you cut down a banana tree and chopped it into pieces and told the deceased wife and mother in-law that you would kill the deceased.
5. You then returned to your house and waited for the deceased to return to the village.
6. When the deceased returned to the village, you armed yourself with two spears and a bush knife and started to attack the deceased.
7. The deceased started to run away from you toward his younger brother Soni Kapuk’s house.
8. As he was running away, you first shot him with one of the spears from the back and he fell to the ground. You then speared him the second time again from the back when he was already on the ground. As if that was not enough, you next used the bush knife to cut the deceased on his head fracturing his skull. You did that to ensure the deceased is not around to compete with your ownership of the disputed land and that he would not attack you.
9. The injuries to the head and one of the injuries to the back with one of the spears were the most fatal according to the medical evidence, as they caused the deceased death.
10. Apart from planting some sago on the disputed land, the deceased did nothing to provoke your attack and his death on the relevant date.
    

Allocutus and Submissions

In your allocatus, you told me that this is the first time for you to stand before a court on a criminal charge. You expressed sorrow and remorse for the loss that you have brought upon the family of the deceased, who are also your relatives. You unfortunately took the life of the deceased over a land dispute. Therefore, you asked me to exercise mercy and leniency toward you.

Your lawyer has submitted in addition and I note that, you are a villager with no education. You are a member of the Assemblies of God Church and that, you have never been involved in a crime before. Both of your parents are alive but elderly. You are relatively young and are married with 4 children. Finally, you brought about the deceased death because of a dispute over land.

Your lawyer has also submitted that, this is not a worse case of wilful murder. As such, he submitted that, I should not impose on you the maximum prescribe penalty of death. Instead, he submits that I should give you a sentence that is lower than death. He drew my attention to the case of Goli Golu v. The State [1979] PNGLR 653.

Mr. Ruari for the State on the other hand, submitted that, your case falls in the worse category or type of wilful murder. This he submits is the case because, you planned the murder and executed it. Your motive for doing so, was the land dispute and a desire on your part to eliminate the deceased from competing with your claim to the disputed land. Further, he submitted that, this kind of killing is prevalent and as such, the maximum prescribed sentence of death must be imposed against you to serve as a deterrent to other would be wilful murderers.

The Offence

The offence of wilful murder is prescribed by s.299 of the Criminal Code as follows:

"1. Subject to succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of wilful murder ...

2. A person who commits wilful murder shall be liable to be sentenced to death."
   

It is now well accepted that s.299 of the Code, is subject to the provisions of s.19 of the Code. And that section reads:-

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

(aa) person liable to death may be sentenced to imprisonment for life or for any shorter term."

In view of the wording in s.19(1)(aa) of the Code, sentences other than death have been imposed for persons found guilty of wilful murder as in your case.

In the case cited by your lawyer, the Supreme Court said that the maximum sentence prescribed for any offence must be reserved for the worse kind of the offence under consideration. Mr. Goli Golu was a well-educated man with an unblemished record. He was convicted and sentenced to the then maximum sentence of life imprisonment for killing the deceased in the precincts of the Court House at Kwikila in the Central Province. On the day of killing, two opposing clans attended the Kwikila Court for court proceedings against some of them following a riot between the two groups over a land dispute. On the day of the hearing, extra police were deployed to maintain maximum security and peace. Notwithstanding the tight security, the appellant got in with a knife undetected. Then in the presence of all the policemen there, he stabbed the deceased whom he did not personally have any grudges against other than that, he was a member of the opposing clan. The trial Judge placed emphasis on the prevalence or the rising trend of killings taking place within the Court precincts which showed total disrespect for the Court. The Supreme Court on appeal reduced the sentence to 13 years on the basis that the sentence imposed by the National Court was disproportionate to the circumstances of the crime.

There are many other cases on point such Ure Hane v. The State [1984] PNGLR 105, and Avia Aihi No 3 v. The State [1982] PNGLR 92. I made reference to the principle of reserving the maximum penalty for the worse type of an offence under consideration in The State v. Darius Taulo (unreported judgement) N2034.

Your lawyer was not able to show why or how your case as one not falling into the "worse type" of wilful murder cases to warrant a sentence lower than the prescribed maximum penalty of death. This was so, because of the difficulty in identifying a worse case of wilful murder from one that is not. My brother Justice Sevua spoke of that difficulty in The State v. Ian Napoleon Setep (unreported judgement) N1478 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."

On my part however, I said this in respect of the possible categories of wilful murder in The State v. Andrew Keake (unreported judgement) N2079 after referring to the Goli Golu (supra), Ure Hane (supra) and Avia Aihi (N0.3) (supra) cases:

"Since the judgement in those cases, the penalty for wilful murder has been increased from life imprisonment to death by an amendment to the penalty provision in 1991. Accordingly, the principles enunciated in those cases apply with modification to say that the maximum penalty of death should be reserved for the "worst type" of wilful murder cases."

I then referred to Bredmeyer J’s categorization of wilful murder cases in this way:

"Bredmeyer, J. in the Ure Hane case without exhausting the list, provided the following list of cases he considered to be serious kinds of wilful murder from pages 107 – 109 of the judgement:

1. Wilful murder committed in the cause of committing a theft, robbery, a break and enter, or a rape.
   
2. Wilful murder of policeman or a prison warder acting in the execution of his duty.
   
3. Wilful murder committed in the cause of or for the purposes of resisting, avoiding or preventing lawful arrest or assisting in an escape from a lawful custody.
   
4. Wilful murder of a person in police or court custody.
   
5. Wilful murder in a payback killing situation of a completely innocent man.
   
6. Wilful murder in a second or third murder.
   
7. Any murder where the offender is a long record of violence such that he is likely to commit such offences in the future.
   
8. Wilful murder of the Governor General, the Prime Minister, the Leader of the Prison Commander, the Speaker of the National Parliament, the Chief Justice, a Bishop, a Visiting Prime Minister, the Pope, or other VIP’s."
   

I then quoted His Honour from page 109 of his judgement, where His Honour said:

"I consider that if a wilful murder falls into any one of the above categories, a Judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but much seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the trial judge then must consider the seriousness of the particular murder in the case of seriousness of the murders in that category."

In The State v. Godfrey Edwin Ahupa (unreported judgement) N1789, my brother, Justice Kirriwom, imposed a sentence of life imprisonment against the prisoner who wilfully murdered the deceased in cold blood. There was no apparent motive for the killing. The prisoner gave a number of blows to the deceased head. He had a prior conviction and sentence for manslaughter. His Honour noted that such:

"senseless and merciless killings are becoming quite prevalent. Courts have been accused of being over lenient in their sentences in some of those cases that deserved nothing but condemnation.

...

"But 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."

On my part, I reviewed nearly all of the cases on wilful murder in my judgement in The State v. Andrew Keake (supra) and I arrived at the view that the case did not fall in the "worse type case." In so doing I said:

"It is not like in a payback situation where a group attack as was in the case of The State v. Angaun Kakas & Others, where the defendants were given sentence of varying years in an ambush situation or at a court hearing as in the other cases cited above. I thus, do not consider the case falling into the worse category of wilful murder cases. This is so not withstanding the use of a firearm. I contrast the situation to say, wilful murder whilst in the course of an armed robbery of a dwelling house at night using a firearm or a hold up on a highway. I therefore, do not consider this case calls for an imposition of the maximum prescribe penalty of death or life imprisonment in accordance with s. 19(1)(aa) of the Code. That is not to say that the taking of a human life by the use of dangerous weapons such as a gun is not a serious offence. It is a very serious offence which requires an imposition of a term of years, if that is consider appropriate in the circumstances of the case, but higher than those imposed for murder or manslaughter cases."

Your Case

In your case, you planned the wilful murder and executed it. The motive was the deceased competing with your claim of ownership over a piece of land. That issue could have been easily resolved with the involvement of the village leaders and or elders and failing that the village court in your area or the local land court. There is no evidence of you taking any steps to resolve the dispute through these lawful means. Instead, you took the law into your own hands and killed the deceased in cold blood.

Life is more precious than land, though life is sustained by what grows on the land. As you are an Assemblies of God Church follower, I am sure you will appreciated that Jesus Christ the creator, giver and sustainer of life demonstrated the preciousness of the human life by allowing himself to be crucified on the cruel cross of Calvary. Indeed, the Ten Commandments of God as recorded in Exodus 19: 1 – 17, God prohibited killing in verse 13 of that chapter which states in a mandatory terms "You shall not kill." Yet you chose to kill.

The book of Romans 3:16 makes it clear that the wages of sin is death. In other words, all sin that we human beings commit has its penalty death. The same book makes it clear that a transgression of the law or the commandments of God is sin. Under s.299 of the Criminal Code, the penalty for wilful murder is also death. However, it is subject to s.19 of the same Code, which grants the Courts the power to impose a sentence less than death. That can be done if the circumstances are such that the maximum prescribed penalty is not warranted.

In the recent case of Godfrey Edwin Ahupa (supra) the National Court decided to impose life imprisonment instead of the death penalty. That was in a case where the prisoner wilfully killed another in situations where the motive for that was not clear. The prisoner had a prior conviction and served a sentence for manslaughter, that is to say, he had killed another person before. In the case of Andrew Keake (supra) I decided to impose a term of 20 years because there was no evidence of pre-meditation, the prisoner was a first time offender and that he had effected only one fatal gun shot injury to the deceased from which he died.

In your case, you planned and executed the murder of the deceased in cold blood. He was unarmed at the time and was not fighting you back in any way. You repeatedly attacked him even though he was already disabled and was on the ground. Against this is the fact that, you are a first time offender and that, there is no evidence that you are otherwise a violent man. You did not commit the offence in the pursuance of any unlawful purposes such as rape, or armed robbery. In these circumstances, I consider it inappropriate to sentence you to death or even life imprisonment. Instead, I consider it appropriate that, you should be given a term of years over and above the sentence given to the prisoner in the Andrew Keake (supra) case because of the distinguishing factors I have mention above. I consider a sentence of 35 years appropriate. Accordingly, I sentence you to a term of 35 years in hard labour to be served at the Boram CIS.

You should consider yourself extremely fortunate that I have decided not to impose the maximum penalty of death or failing that life imprisonment. You should also seriously consider making your life right with God and your fellow man. A failure to do so before the Lord Jesus Christ returns to take his people home to Heaven, will result in sure death. There will be no leniency by then. Now is the time to get your relationship with God and your fellow man right. I can only hope that you will do that.

Ultimately, I order that you be sentence to 35 years in hard labour at the Boram CIS. Of course, the period you have already spent in custody awaiting your trial shall be deducted from that sentence of 35 years. A Warrant of commitment in those terms shall be issued.
_______________________________________________________________________

Lawyers for the State: Public Prosecutor

Lawyers for the Prisoner: Public Solicitor