N2249

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 760 of 2000

THE STATE

-V-

CHRISTOPHER KUTAU &
COSMOS KUTAU KITIWAL (No. 2)

WEWAK: KANDAKASI, J.
2002: 24th May

DECISION ON SENTENCE

CRIMINAL LAW -Sentence – Wilful murder – Killing in retaliation of previous fight – Deceased unarmed – Defence of self-defence and provocation raised – Defence of self-defence abandoned during submissions on verdict – defence of provocation not made out – Single but fatal deep penetrating sword knife wound – One of the prisoners expressed his intention to kill the deceased - Prisoners found guilty after trial – First time offenders – Categories of wilful murder considered – Case not warranting maximum penalty of death – Sentence of 40 years imprisonment imposed with light labour for one of them on account old age - ss 19 and 299 Criminal Code.

Cases cited:
The State v. Theo Raphael (No.2) (14/02/02) N2180
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 Sate 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

Counsels:
Mr. M. Ruari for the State
Mr. R. Saulep for the Accused

24th May 2002

KANDAKASI J:	On Wednesday last week (15th this instant) I found both of you guilty and convicted you both for the wilful murder of one Ray Nangel contrary to section 299 of the Criminal Code. That was after a trial on the 9th and 10th of this month.

I asked you both to personally address the Court on the kind of sentence the Court should give you. You chose to leave it all to your lawyer. I therefore proceeded to hear submissions on sentence from both your lawyer and that of the State. After that I reserved a ruling on your sentence and this is the decision of the Court.

Relevant Facts

The relevant facts are setout 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 picked a fight with the deceased on the night of 6th of April 2000, as a result of which you had some of your properties destroyed;
2.	An apology was therefore made from the deceased side the next day, which was accepted by Cosmos Kutau Kitawal but not Christopher Kutau;
3.	Christopher had indicated your intention to kill the deceased by saying you will square it up with the deceased and or that you would send him to the morgue despite counsel against that;
4.	On the day of the killing, the deceased and his friends did not come armed and ready to kill you and your family and burn down your house and or destroy your properties;
5.	You armed your self with a dangerous weapon and picked a fight with the deceased and killed him by stabbing him from the back; 
6.	The deceased died from that one fatal sword knife wound;
7.	If the deceased and his friends came to kill you, you had opportunity to either secure you and your property before hand or escape through your other gate leading on to the Scenic Drive way and leave the matter to the police but you chose not to; and
8.	There was no good cause legal or otherwise to kill the deceased on the 7th of April 2000.

Submissions

Your lawyer submitted that both of you are first time offenders. That means that, prior to the commission of this offence, you both had a good record. He also submitted that Cosmos had rendered dedicated services to the nation in the field of education for which he was recognised by the Queen and he is an OBE. Both of you are not in the formal employment sector now or just prior to the commission of the offence but were self employed in seasonal fishing and a small scale bottle shop. Christopher Cosmos is the first borne son of Cosmos and he is about 20 years old now. He is not married. Cosmos is married with Christopher being his first born. You have a wife and other children. If both of you are imprisoned the rest of your family will be affected.

There is no dispute that wilful murder is a very serious offence as it carries the maximum penalty of death. Your lawyers submission is however that, given your prior clean record and in the case of Cosmos, distinguished services to the nation, you be not given the maximum penalty of death. Your lawyer also submitted that Cosmos was the victim of a criminal attack some years ago. That required a long medical surgery and treatment to his head and brain. He therefore suffers from illness such as depression and stress. No up to date medical report has been furnished to indicate the current position. It has also been submitted on your behalf that there are various categories of the offence of wilful murder and that your case, does not fall in the worse category to warrant the death penalty. No authorities were cited to support the submission on your behalf for the Court’s consideration before your sentence.

On the other hand the Stated argued that, the offence of wilful murder is a serious offence because it involves the deliberate taking away of the life of another person. It therefore carries the penalty of death. At the same time it agreed that, there are various categories of wilful murder and that your case does not fall in the worse category. It drew my attention to my most recent decision in The State v. Theo Raphael (20/02/02)(N0.2) N2180 and it asked for a sentence between 30 years to life imprisonment.

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 section 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 Section 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 Goli Golu v. The State [1979] PNGLR 653, the Supreme Court said that the maximum sentence prescribed for any offence must be reserved for the worse kind of the offence under consideration. In that case, 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 courthouse at Kwikila in the Central Province. On the day of killing, two opposing factions or clans attended the Kwikila Court for court proceedings against some of them following a riot between the two groups over 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 and 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 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 that principle in The Sate 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 referred to the Goli Golu (supra), Ure Hane (supra) and Avia Aihi (N0.3) (supra) case:

"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 that case 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 found 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 sentenced 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."

I referred to all of these in the Theo Raphael case (supra), and found that case to be one not falling in the worse category of wilful murder cases. I then sentenced the prisoner to 35 years imprisonment in hard labour. That was in a case of one on one attack over a land dispute. The prisoner wanted to eliminate a competing claim of ownership put up by the deceased. He attacked him with spears and a bush knife and used the spears repeatedly to kill the deceased. He too raised the defence of provocation but was rejected for lack of evidence. He had no prior convictions and was a relatively young man. 

Your Case

In your case I find that Christopher had planned to kill the deceased. He made that clear to two of the State witnesses. I found in my judgement against you that on the day of the killing you armed yourself and attacked an unarmed man. Cosmos came to the aid of your son Christopher and stabbed the deceased from the back most fatally with a dangerous weapon. The deceased died from the sword knife wound. It seems the motive for your attacking the deceased was the damaged caused to your property the previous night, which in itself was a reaction to your first attacking the deceased. You could have easily resolved that matter by involving the community leaders and or the police and failing that the court system without killing the deceased. There is no evidence of you taking any steps to resolve the dispute through these lawful and peaceful means except only to report the incidents of the previous night to the police. Instead, you chose to take the law into your own hands and killed the deceased in cold blood. 

Life is more precious than table, chairs and buildings, (being the items over which appeared to have attacked the deceased) though life is supported and made easier to these things. As you made reference to a family worship prior to the killing, 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 God in the Ten Commandments, which he gave to man through Moses recorded in Exodus 19: 1 – 17, prohibits killing in verse 13 of that chapter and book of the Holy Bible by saying with a mandatory "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 section 299 of the Criminal Code, the penalty for wilful murder is also death from a previous maximum of life imprisonment. Parliament increased the penalty in response to this kind of killings in the hope to prevent or minimize this kind of offences. The reality of the situation in the country is that, the number of wilful murder cases has increased instead of a declining. This could be contributed to by a ready resort to section 19 of the 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 convict 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. For reasons already stated I decided to impose a sentence of 35 years imprisonment to the prisoner in The State v. Theo Raphael (supra)

In your case you planed and executed the murder of the deceased in cold blood. That was in retaliation of the destruction to some of your personal properties such as chairs and tables. He was unarmed at the time and was not fighting you back in a way that was posing a serious safety concern for you. The deceased was stabbed from the backing by one of you when he was facing and fighting with the other. Against this is the fact that both of you are a first time-offenders and that there is no evidence that you are otherwise violent persons. You did not commit the offence in the pursuance of any unlawful purposes such as 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 sentences given to the prisoner in the Andrew Keake (supra) and Theo Raphael (supra) because of the distinguishing factors I have just outlined above. 

Before pronouncing the sentences for, there is one final thing I need to mention. That is in relation to Cosmos Kutau Kitawal’s medical condition. I requested a further and up to date medical report to ascertain his current medical condition before sentence in the hope that, such a report could become available before sentence and in any case before the end of the circuit. A further and up to date medical report was being requested and was going to be made available to the Court as soon as it was ready. I made that request in view of your counsel making submissions based on Cosmos Kutau’s medical condition. I also made that request in view of the suggestion by some authorities that the courts should be slow to send a person of advance aged to the prison. I have reconsidered the issue and have arrived at the view that, where death is the penalty or failing that, life imprisonment is the next possible sentence, any sentence below those, is already lenient and would therefore be not crashing on a prisoner. I therefore consider it not necessary to wait for a further and up to date medical report. Also, if you were going to take this point, it was incumbent upon you and your lawyer to organize such a report before hand and have it ready at the time of the trial. This was not done for reasons only known to you.

I consider a sentence of 40 years appropriate for both of you. There is no need to treat the two of you differently, because you acted in concert and have similar antecedents apart from the personal and family backgrounds. Accordingly, I sentence you to a term of 40 years in hard labour to be served at the Boram CIS less any time already spent in custody awaiting your trial and sentence, if any. A Warrant of commitment in those terms shall be issued. 

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 your God and your fellow man right. I can only hope that you will do that.
________________________________________________________________________
Lawyers for the State:					Public Prosecutor
Lawyers for the Prisoner;				Public Solicitor