N2654

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. NO: 929 OF 2004

THE STATE

-v-

HUNGI KOESKAPI

Mendi: Lenalia, J.
2004: 18, 25 Aug.

Criminal Law – Wilful murder – Guilty plea – Criminal Code, s. 299 (1), Ch. No. 262.

Criminal Law – Wilful murder – Plea – Factors for consideration – Attack of an unarmed victim – Use of lethal offensive weapon – Use of bayonet – Payback killing – Gruesome and barbaric – Deliberate and calculated killing – Worst type case – Appropriate penalty – Imprisonment for life.

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
Charles Ombuso -v- The State [1976] PNGLR 335
State -v- Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa (1997)
The State -v- Arua Maraga Hariki (2003) N2332
Jae Fae Leslie Leslie -v- The State (1998) SCRA 82 of 1996

Counsel:
Mr. S. Kesno, for the State
Mr. P. Kapi, for the Accused

26th August 2004

LENALIA, J.		In this case an indictment was presented to this Court by Mr. Kesno of counsel for the State on the 18th day of this month containing one count of wilful murder on which the accused is charged that on the 17th day of January 2004 at a place called Wombip – upper-Mendi, he wilfully murdered Moses Akivi contrary to s. 299 (1) of the Criminal Code.

The charge was read and explained by the Court to the accused in terms of the brief facts presented to Court by the State counsel. The accused indicated through the Court Interpreter that he understood the charge. When asked by the Court to plea, the accused entered a guilty plea.

Background facts:

On Saturday the 17th day of January 2004, the accused followed the victim to a number of places by monitoring Moses Akivi (deceased) very closely. In the morning of that date, the victim and a number of his young friends came into Mendi town. Two of the youths accompanying the deceased to town were Levi Sett a 14 year old student at the Bela Primary School and David Akivi 17 years old a Grade 7 at the same School. The later is the brother of the deceased. 

At the Bela bus stop, Levi Sett and Daniel Akivi noticed that the accused was also standing awaiting a bus. When a 25 seater bus came the victim and his four youths got into it and all noticed that the accused also got in. On the way between Bela and Mendi town, all passengers were seated whilst the accused merely stood up until they all got off in town.

Wherever, the victim and the four youths went around in town, Levi Sett observed that the accused was following them from place to place. The accused somehow decided to live first to go back to the village. When the deceased and his boys returned to the village Levi saw the accused walked up to Bela from another village. When Levi and Daniel saw the suspicious movements by the accused, they expected something to happen later that day.
Then by 2 pm that day when the rugby games were on, the deceased was a player in one of the teams. When the deceased was changing into his sports gear, some of his friends and his brother were with him. The accused sent two of the boys to buy smoke in the nearby market. At that stage the accused gave the two boys K10.00, they walked some few metres away from the accused and deceased and turned back to ask the accused how much money they should spend on smoke. As they looked back, they saw the accused pulled out the bayonet from his trousers and plunged it into the deceased neck below the left ear. He purposely sent the deceased’s relatives away so he could kill the deceased.

Mr. Nick Nosum, the team manager of a team called "Firestorms" standing nearby the scene of the brutal killing, said he saw the accused plunged the sword into the neck of the victim and thrust it in and out, pushed it sideways thence pulled the sword out, he leaked the blood and started to run for his life. Another witness with a similar name to that of the deceased Daniel Akivi said after him and Nick Nosum took some few steps away he too turned back to ask the accused how much money he should spend on smoke, he was in time to see the accused thrust the bayonet into the left side of the victim’s neck and when the sword was in the neck he saw the accused moved or pulled the sward to and from the deceased’s neck.

The situation was such that, soon after the accused pulled his bayonet out from the deceased’s neck, the victim immediately collapsed and died. The medical report reveals a glaring finding where the doctor found amongst other findings that the left common artery was severed and the artery that is very close to the heart supplying blood to the left side of the brain was totally cut resulting in blood being pump from the blood veins being ejected quickly. It thus resulted in death.

Allocutus and Submissions:

On his allocutus, the accused said he is sorry to God and to the Court for killing the deceased. That some of the deceased clans have killed certain members of his family so he killed the deceased. He further said his line had paid a large sum of compensation of K25,000.00 cash and a total of 23 life pigs and that was only a "bel kol" money. Full compensation will be made later. As to how soon is not clear from his statement.

Mr. Kapi of counsel for the accused conceded that this case was one of worst type of killing and urged the Court to take into account the sentencing guidelines set down by the Supreme Court in Goli Golu -v- The State [1979] PNGLR 653 and Ure Hane -v- The State [1984] PNGLR 105. Mr. Kapi reiterated the issue of compensation had been paid. He urged upon the Court to take the accused guilty plea into account on sentence. He cited a number of cases dealing with charges of wilful murder. I shall refer to some of them later.

Mr. Kesno for the State submitted on the other hand that the crime committed by the accused is one of those "worst type case" and that this was a brutal day light killing of an innocent person without due regard to the protection of life guaranteed by s.35 of the Constitution. Mr. Kesno further submits that as deterrent measure, the Court ought to consider either life imprisonment or the maximum being imposition of the death penalty.

Law

Under s.299 (2) of the Criminal Code a person convicted of wilful murder "shall be liable to be sentenced to death". When Papua New Guinea obtained Independence on 16th September 1975, the Criminal Code prescribed the death penalty for wilful murder. By an amendment the Criminal Code (Amendment) Act 1976 (Act No.2 of 1976) it was amended to life imprisonment. However due to the upsurge of law and order problem and the general violence experienced then in some parts of the country, the Parliament decided to reintroduce the death penalty. Then in 1991, by an amendment called the Criminal Code (Amendment) Act 1991 (Act No. 25 of 1991), Subsection (2 ) of s.299 of the Code was repealed resulting in the reintroduction of the death penalty.

It is the Parliament’s decision that the death penalty has been reintroduced. The people of this country have spoken through their elected representatives that the death penalty ought to be given under such circumstances as they fall into the "worst type case" or cases of wilful murder. Ure Hane -v- The State (supra). Since the amendment came into operation in 1991, the National Court has sentenced a number of persons to the death penalty. What I might call, the stepping stone case was that of Ombusu -v- That State [1996] PNGLR 335 where the appellant was sentenced to death for a horrific wilful murder of another man in Oro Province. The appellant in the above case was sentenced to death. A five men bench Supreme Court judges consisting of Amet C.J. Kapi DCJ. (as he then was) Los, Injia (as he then was) and Sawong JJ. quashed the decision on technical grounds only.

The second death sentence so far imposed since the 1991 Amendment was in Kimbe by Woods, J. in Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa -v- The State (1997) unreported judgment of 7th February 1991. The three appellants appealed to the Supreme Court. That Court consisting of three judges dismissed the appeal against their convictions and sentence. That sentence stands to be executed.

Following the above, Salika, J. in The State -v- Arua Maranga Horiki (2003) N2332 sentenced the accused who committed a double wilful murder on two separate victims. For the first count, he was sentenced to life imprisonment and the second one the death penalty was given. The next case is that of The State -v- Kepak Langa (2003) CR. No. 300 of 2003 where His Honour Jalina, J. sentence the accused to death for wilful murder after having been found guilty of a brutal murder when the accused set up an ambush and when the victim came his way with other people, the accused attacked the deceased in the most savage manner. Evidence by the State was that people from the accused village saw the accused took part in the attack.

The latest of the cases where the death penalty has been invoked is that of The State -v- Ben Simakot Simbu (No.2) (2004) CR. No. 1413 of 2002, (an unreported judgment of 25th March 2004) where His Honour Kandakasi, J imposed the death penalty for double murder of a woman and her 2 years old child in Vanimo. In that case the accused came to ask the deceased woman for a life chicken to be given to him on credit. The victim refused, but the accused repeated his request two more times. Each of those times, the victim said no. On the third time, the accused got angry and grabbed the victim.

The woman put up a struggle, but being a woman was overpowered and thrown down to the ground and thereafter, the accused raped her. After that he picked up a rusty piece of iron and used it to hit the victim across her head. She died instantly. He used the same piece of iron and struck the child on the head. The child too died instantly.

I have referred to the above cases since the principles in Avia Aihi -v- The State [1982] PNGLR 92 and Ure Hane’s cases (supra) were applicable to the penalty provision of the section charged were decided when life imprisonment was the maximum penalty. It is my respectful view they are not now relevant when the maximum penalty is death.

The relevance in Ure Hane’s case though is that, it sets out and categorizes what can be considered to be the "worst type" of cases. The death penalty is fixed by Subsection (2) of the section charged in the body of indictment. To this Court it means any considerations for a sentence in any wilful murder cases must begin with the death penalty. But the Courts have the discretion under s.19 (1)(aa) of the Criminal Code to impose a lesser penalty than the prescribed term.

The principle of sentencing so far adopted since Goli Golu -v- The State (supra) when life imprisonment was the maximum penalty for wilful murder. The Supreme Court there said that the maximum penalty for wilful murder "should be reserved for the most serious instances of the offence".

Then in Avia Aihi -v- The State (No.3) [1982] PNGLR 92 in it’s holding the Supreme Court there said:

"The basic sentencing principle of proportionality to the offence applies when considering sentences of life imprisonment, which as the maximum punishment, should be imposed only in cases properly categorized as "worst type cases".

The Supreme Court in Ure Hane’s case held on its first holding at page 105 that:

"When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the Court should, insofar as the law allows, categorize those "worst type" cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender".

The above statement has been adopted in all wilful murder cases as well as in other homicide cases where the issues of the maximum penalties are concerned. Such statement has been adopted and applied with approval in many cases in my view is logical and reasonable in terms of the application of the discretion given the Court under s.19 (1)(aa) of the Criminal Code.

In The State -v- Wingkeoc Pitaneoc & Boiyo Kaninga (2004) N2515 (unreported judgment of 12th March 2004) Manuhu, AJ at page 3 of the judgment, His Honour spoke about the use of the discretion under s.19 of the Criminal Code in the following terms:

"However, the Courts have the discretion under Section 19 of the Code to impose a lesser penalty. Under Section 19 (1)(a) a person liable t death may be sentenced to life imprisonment for life or for any shorter term. The exercise of this discretion is not dictated by feelings or personal views. I must be made judiciously and based on proper reasoning process."

The above case involved a double wilful murder of two young deceased’s who were lured by the first accused to have a swim in the Markham River in Lae. The accused kill Erenukac age 17 and Bardie age 11 years. The above was some kind of contract killing where the second accused promised the first accused a sum of K1,500.00 for the killing of a person by name Bougena. The first accused could not kill Bougena because he was big in his stature. So he lured the two young victims and strangled one of them and as appeared from the evidence before His Honour, the other deceased suffered fatal head injuries. The dead bodies were dumped in the river. The two accused was sentenced to terms of life imprisonment.

I agree with His Honour’s statement above. In deciding an appropriate penalty for a charge of wilful murder, a judge must properly exercise the powers given him or her under s.19 of the Criminal Code. Such decision cannot be dictated by motions but, must be based on proper "reasoning process".

Woods, J. expressed a similar opinion on the discretion given the Courts under s.19 of Code in The State -v- Yapes Paege & Relya Tanda [1994] PNGLR 65. At page 66 of the judgment His Honour said:

"Of course, Parliament has also said that the Court can act under s.19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the death penalty in s.299 is not mandatory. There is some discretion. However, this discretion under s.19 cannot be an automatic moderation of the law. The application of s.19 must require circumstances, but it cannot mean there is a very wide discretion with the range of one year imprisonment to life imprisonment to death. Surely if there were this automatic wide range, this would have been included in s. 299 itself. By putting it in s.19, it suggest something special".

In The State -v- Kiko Ipai (2002) N2268 (unreported judgment of 19th June 2002) Jalina, J. considered that the maximum penalty of death was not appropriate in the circumstances of that case. The above case was the case where the accused was found guilty for wilful murder. Mr. Kesno was the prosecuting counsel in that case. In that case the accused chopped up the body of the deceased and had him thrown into the Pogera River. Though it was submitted by the State to His Honour than that a sentence to be imposed in that case should be one to act as a deterrent. The accused was sentence to life imprisonment as the Court there decided that the death penalty was inappropriate.

For purposes of sentencing the accused in the instance case, I set out what was considered by the Supreme Court in Ure Hane’s case to be "worst type case". At pages 107 to 109 of their judgment, Bredmeyer, J enunciated with approval of two other judges, otherwise McDermott, J., and Woods, J. would have dissented. The list of categories is not an exhaustive one. They include:

1.	Wilful murder committed the course of committing a theft, robbery, break & enter or a rape.
2.	Wilful murder of a policeman or a prison officer whilst on duty.
3.	Wilful murder committed in the course of or for reasons of resisting, avoiding or preventing a lawful arrest or assisting in an escape from a lawful custody.
4.	Wilful murder of a person who is in either police or Court’s custody.
5.	A killing by wilful murder of a completely innocent person in a payback killing situation.
6.	Wilful murder in a second or third murder.
7.	A wilful killing by an offender who has had a long record of violence previously and he is likely to repeat such violence.
8.	Wilful murder of the Governor General, Prime Minister, Leader of Opposition, the Speaker of the National Parliament, the Chief Justice, a Bishop, Visiting Prime Minister, the Pope and other V.I.Ps.

At the last paragraph at page 109 of the above case, His Honour said:

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

A few more cases should serve to illustrate the varying degrees of seriousness under which wilful murder has been committed. The circumstance of the instant case would be almost similar to that of The State -v- Tumu Luna (2002) (CR. NO. 933 of 2001 unreported judgment dated 20th May 2002) where the prisoner killed the deceased with a single shot from a homemade shotgun. The accused shot the deceased at point blank range despite the deceased pleading with the accused to live him alone. The State’s counsel there submitted for the death penalty, but Jalina, J. imposed life imprisonment on the consideration that the case before him was not as bad as the facts and evidence in The State -v- Madiroto [1997] PNGLR 95.

In Madiroto’s case (supra) the prisoner dragged the deceased out of her garden house. He burnt the house down and belted the victim with his hands and thereafter, he pulled her down to the nearby creek. He threw her down on stones. He then grabbed the victim by her neck and squeezed her throat then at the same time pushed her head into the water and kept her under water until she died. His Honour, Sevua, J. imposed a life sentence. The facts and evidence in that case shows the victim died an agonizing and painful death from the start of the ordeal until she was suffocated under water until her death.

I agree with Mr. Kesno that, this kind of killing is very rampant not only in this Province but right throughout this region and a deterrent sentence should be imposed. What is obvious is that this type of horrific killing is common and there is no respect for the sanctity of human life and the rule of law. I find from the facts of this case that this was one of those cases where there was blatant disregard for the human life which was taken away.

The issue of deciding a penalty for an offence committed under s. 289 (1)(2) of the Criminal Code is rather a difficult one. It is not only with charges of wilful murder but the other lesser homicide cases such as murder, manslaughter and attempted murder under ss. 300, 302 and 304 of the Code. That difficulty has been expressed in a number of cases. For instance in The State -v- Yapes Paege & Relya Tande (supra) where His Honour said at pp.66.

"But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killing – 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 the grove, 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 intention to kill and carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life".

Similar remarks were made by Kirriwom, J. in The State -v- Godfrey Edwin Ahupa ( ) N 1789 where His Honour 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 agonizing manner, or whether the victims are gunned down, axed, knifed or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated".

Be it a wilful murder, murder or manslaughter killing the result is a human life is lost. What concerns this Court is the level of disrespect shown to the sanctity of life. Just on this circuit, I have dealt with two wilful murder cases and two murders. It shows that more homicide cases are committed by wilful murder and murder. Simply put, there is no respect for life at all and it is the duty of the Courts to ensure that, the right to life guaranteed by s. 35 of the Constitution must be upheld safeguard and protected.

With regard to compensation, it was submitted that a substantial sum of K2,500.00 cash has been paid together with 23 life pigs. Such payments by the terms of The State –v- Phillip Susuve Reipa [1994] PNGLR 458 and The State -v- William Muma [1995] PNGLR 161 go into mitigation. This Court cannot however take payment of compensation as a form of customary penalty: The State -v- Peter Kose Wena [1993] PNGLR 168.

The brief facts of this case show that the instant case was a brutal killing of an innocent person who had nothing to do with the deaths of the eight relatives of the accused. He chose to take the life of a young teacher who had a bright and prosperous future. The accused carefully planed the crime before he executed it. This offence squarely falls within the "worst type" categories of cases earlier discussed. The accused cannot raise lack of sophistication as both the Government and Church influences have been around in this region for almost 40 to 50 years now. This kind of killing must stop. In the recent past the Courts have tried to stop these types of killing by imposition of higher sentence has in fact not achieved much. It is time the Courts seriously consider either life or death depending on the circumstances of each case.

Having mentioned that, the instant case falls into the worst category of wilful murder. I will now consider if there are any mitigating factors to be considered in your favour. In so doing, the Court take into account you’re guilty to this serious charge. You also have no previous convictions. I take into account, you have been provoked in the "non-legal sense" and some compensation has been paid. I have seriously considered the issue of penalty and decided it would be between life and death.

Considering the serious brutal and horrific manner under which you planned and committed this crime outweighs all mitigations mentioned in your favour. The accused is now about 23 years of age. The Court considers that the maximum of death penalty is inappropriate in the circumstances of the instant case. The Court instead imposed a sentence of life imprisonment.

Sentenced accordingly.
_______________________________________________________
Lawyer for the State		:	The Public Prosecutor
Lawyer for the Accused	:	The Public Solicitor