N2631

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1677 of 2003

THE STATE

-V-

SINZAI KARAWA

GOROKA: 	KANDAKASI, J.
2004: 	25th, 26 and 27th August
2nd September

CRIMINAL LAW –Verdict – Wilful murder – Self defence raised – Issue for trial – Whether Accused acted in self defence – Issue determinable on credibility of witnesses – State witness found credible – Guilty verdict returned – Sections 299 and 270 of Criminal Code.

CRIMINAL LAW – Sentence – Wilful murder – Dispute over land – Deceased provoking initially – Deceased cut twice with use of bush knife – Conviction after trial – First time advanced aged adult offender – Expression of remorse coupled with compensation – 20 years imprisonment imposed – Sections 299 and 19 of Criminal Code.

Cases cited:
The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416.
The State v Peter Malihombu (29/04/03) N2365.
The State v. Allan Mainde (21/05/04) N2679.
The State v. Peter Malihombu (29/04/03) N2365.
The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266.
Rosa Angitai v. The State [1983] PNGLR 185.
The State v. Paulus Non Pable (11/06/99) N1873.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.
 Sakarowa Koe v. The State (01/04/04) SC739
Rex Lialu v. The State [1990] PNGLR 487.
Goli Golu v. The State [1979] PNGLR 653.
 Ure Hane v. The State [1984] PNGLR 105.
The State v. Laura No 2, [1988-89] PNGLR 193.
The State v. Theo Raphael (No 2) (21/02/02) N2181.
The State v. Ben Simakot Simbu (18/03/04) N2573.
The State v. Paul Yapei (No.2) (26/03/04) N2571.

Counsel:
J. Kesan for the State. 
M. Aipe’e for the Prisoner.

Decision on Verdict

27th August 2004

KANDAKASI J:	You stand charged with one charge of wilfully murdering your cousin brother, Menamurizei Dukurima on 22nd July 2003 at Marawaka, Ombura Wanenara District, Eastern Highlands Province. You admitted to killing the deceased by cutting him with a bush knife twice. The first one was on his head causing the deceased to fall and the second was on the back as he was on the ground faced down. 

You claim that you killed the deceased in self-defence or in simple terms, you say you killed the deceased to prevent him from killing you. A short trial therefore, took place on Wednesday 25th on the question of whether you acted in self-defence. 

The State admitted into evidence with your consent, a confessional statement obtained from you by the police soon after the killing. The State also admitted into evidence a statement each from the policemen who got the confessional statement off you. Similarly, an affidavit sworn by a health worker, Tara Bukolei that describes the cuts you inflicted upon the deceased was admitted into evidence.

In addition to the above evidence, the State called the widow of the deceased, Kandarina Menamurizei. She gave a sworn oral testimony essentially testifying that, you attacked the deceased after an argument with him over a land dispute. At the time of your attack, the deceased did not attack you or pose any serious threat to your life, although he had a knife with him. On the other, you testified that, the deceased attacked you first with a bush knife, cutting you on your right hand. So you retaliated by cutting the deceased first on his head which caused him to fall to the ground and as he was on the ground, you cut him again to ensure that he did not get up and attack you again. 

In submissions, both your counsel and that of the State agree that, which of these versions should the Court accept, is dependant on which of the witnesses, yourself or the widow of the deceased, the Court finds is credible. The Courts usually determine the issue of credibility of a witness applying a number of factors. These factors include, checking the evidence given against logic and commonsense, demeanour of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11/06/03) N2416; The State v Peter Malihombu (29/04/03) N2365 and The State v. Allan Mainde (21/05/04) N.

I carefully observed the demeanour of both yourself and the deceased widow as you gave your evidence. I found nothing in the demeanour of the widow that was indicative of a person not telling the truth. Instead, she gave me the impression that, she was telling the truth. She freely testified of the deceased starting the whole chain of events that ultimately led to his death. She said, the deceased came onto land that was yours and started to make his garden, as he had no other land close to the village to turn to. She also said, after you cut the deceased the first time and he fell, a woman knocked her out temporarily unconscious. That prevented her from seeing what happened next until she regained her consciousness and managed to get hold of the deceased, who died from the injuries he sustained from you. If she was not a truthful witness, she could have proceeded to say you cut the deceased the second time but she did not. She could have also withheld the evidence of the deceased making his garden on your land and that started the trouble.

Further, your cross-examination of the witness did not create any dent on her evidence and her demeanour. In addition, she did not give any evidence that goes against any sense of logic and commonsense. I have come to that conclusion even though, I had some difficulty initially in accepting her evidence that, even although, the deceased had a knife with him, he did not use it. On a close examination of her evidence, I note her evidence that, upon getting onto the disputed land, the deceased and her found you cutting grass on the land. The deceased therefore, told you to leave. Then he came closer to where you were and you cut him. I cannot see anything unreasonable or illogical and out of commonsense about this. 

With regard to your evidence, I do not have the same impression of you. Instead, I have the clear impression based on your demeanour and account of what happened that, you were exaggerating what might have happened. For example, you said the deceased came to you ready to fight as he was armed with a bow and arrow, an axe, a bush knife and a stick. I have some serious difficulty in understanding how the deceased could have carried all of these weapons at the same time and how he might have known that you were already at the garden. Another example is, your saying, the deceased came from behind you after having faced you by which time you changed the weapons or instruments you had with you. On the left hand, you had a stick and on the other a bush knife. As the deceased was attacking you, you swapped the weapons. I have great difficulty in understanding why and how you could have done that in the light of an imminent attack on you.

In addition to these observations, I also find it hard to believe that you could have continued to cut the grass on the disputed land, even though you said clearly in your evidence that, the deceased came armed to kill you, as he wanted to take the land away from you. A normal thinking and reasonable human reaction on your part would have been to immediately leave what you were doing and face the approaching threat. You did not give any evidence or explanation of why or how you were still able to continue to cut the grass and ignore the imminent threat. 

Further, you gave inconsistent accounts of what happened. Initially and in line with the confessional statement, you said you cut the deceased the second time prior to his death as he was on the ground. You later changed that to say, you cut the deceased immediately after the first cut and well before he fell on the ground. You went on to say, you believed that the deceased would get up and attack you when he gave you no indication whatsoever that he was in a position to do that.

The uncontested evidence is that, as soon as you cut the deceased on his head, he fell on the ground. There is no evidence for example, of the deceased struggling to his feet and was trying to reach for one of the weapons you said, he came to kill you with, or that immediately after falling, the deceased got up and started to attack you. Normal human reaction in the kind of circumstances you found yourself in would be for you to assume that you had killed the deceased as soon as he fell immediately following the first cut. That could have made you to run away and seek cover but you gave no evidence of doing that. Instead, you were prepared to maintain that you were fearful that the deceased would get up and kill you so you cut him the second time.

Of the two of you, I find that, the widow was a more truthful witness than you were. I therefore accept her evidence. As noted, her evidence is that, the deceased was not attacking you at the time of your cutting him with the bush knife for the first time. Then as you say in your own evidence, you cut the deceased when he was already on the ground. You do not give any evidence of the deceased in fact taking steps to retaliate before you cut him the second time. Given this, the question is, did you act in self-defence when you killed the deceased?

The defence of self-defence is provided for by s. 270 of the Criminal Code. It provides:

"(1)	Subject to Subsection (2), when—
(a)	a person has unlawfully assaulted another person, or has provoked an assault from another person; and
(b)	the other person assaults him with such violence as—
(i)	to cause reasonable apprehension of death or grievous bodily harm; and
(ii)	to induce him to believe, on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,
the first-mentioned person is not criminally responsible for using any such force as is reasonably necessary for such preservation, even if it causes death or grievous bodily harm.
(2)	The protection provided by Subsection (1) does not apply—
(a)	where the person using force that causes death or grievous bodily harm—
(i)	first began the assault with intent to kill or to do grievous bodily harm to some person; or
(ii)	endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself arose; or
(b)	unless, before the necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable."

I considered this provision in a number of cases as in The State v. Peter Malihombu (29/04/03) N2365 and The State v. Cosmos Kutau Kitawal & Christopher Kutau (No 1) (15/0502) N2266. In those cases, I had regard to the Supreme Court’s judgment on this provision in Rosa Angitai v. The State [1983] PNGLR 185 and said this for example in the The State v. Peter Malihombu:

It seems clear to me that, in order for there to be a valid defence under this provisions the following conditions must exist:

(a)	a person must first unlawfully assault the person claiming the defence independent of any provocation from him;
(b)	the other person has applied such force or violence to cause the person claiming the defence to have a reasonable apprehension of death or grievous bodily harm;
(c)	induced to believe on reasonable grounds that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence,

But this defence can not be available, where:

(a)	the person claiming the defence first began the assault with intent to kill or do grievous bodily harm; or 
(b)	endeavoured to kill or to do grievous bodily harm to some person before the necessity of preserving him arose; or 
(c)	before the necessity to prevent him arose, the person using the force declined further conflict and quitted it, or retreated from it as far as is possible."

I accept Mr. Kesan’s submission that, in the Supreme Court judgment just cited, the Supreme Court made it clear that, the defence of self-defence is not available in cases of future assault or threat of assault cases. These accords well with the principle that the need for the protection of oneself must be from an immediate or imminent danger and not something that has not yet in motion or the threat has ceased to exist. 

In your case, according to the State’s evidence, which this Court decided to accept, clearly shows that no imminent harm was directed at you that necessitated your actions at both the first and second time you cut the deceased. So you over reacted to a situation that did not warrant the cutting of the deceased twice. Even if we proceed on the basis of your own evidence, I find that the harm or threat the deceased posed ceased as soon as you cut the deceased the first time and he fell to the ground. You had already disarmed, if not, put an end to the imminent harm directed against you. The deceased did nothing after your first cut that could have given you an indication that he was going to get up and kill you. Even if that were to happen, you still had opportunity to run away from the deceased before he could have gotten up, regained his strength and attacked you.

In these circumstances, I find that, your intention was to kill the deceased because he was trying to get your land away from you. That is why you continued to attack him, even after he was already disarmed and any threat or harm he might have directed at you ceased upon your first cut. The medical evidence suggests that the second cut, which was to the back was more serious than the one to the head, as that cut reached the deceased spinal code penetrating through the backbone or vertebra. I find that, that cut was the most fatal of the two cuts you inflicted upon the deceased and that could have substantially contributed to his death.

On these facts, I find that you set out to kill the deceased not in self defence but in pursuance of an intention to kill the deceased because of the land dispute, he was putting up with you. I am therefore, satisfied beyond any reasonable doubt that, you wilfully killed the deceased not in self-defence as you claim. I accordingly, return a verdict of guilty on the charge of wilful murder contrary to s. 299 as presented against you.

Decision on Sentence

2nd September 2004

On Friday 27th August 2004, the Court found you guilty of wilful murder after a short trial on the issue of whether you acted in self defence. The facts are set out above and I need not repeat them here. For the purposes of sentence however, I note the following are the relevant facts:

1.	The deceased is your own blood relative; you described him as your brother who came and claimed your land by starting to make his garden on it.
2.	On the day of the offence, you were working on the same land when the deceased came and told you to leave the land but you refused and continued.
3.	The deceased then came closer to you and you attacked him with the bush knife you had with you twice.
4.	The first of the two cuts was on the head which caused him to fall on the ground.
5.	Whilst the deceased was on the ground, you cut him the second time on his back.
6.	The deceased died at the scene from the injuries you inflicted upon him.

In your address on sentence, you said sorry for having taken your own brother’s life and said you regretted having done that. You then pointed out that, you have a large family of 24 children, some your own and others you adopted from other relatives who passed away. You also said your wife is now deceased.

Your lawyer then submitted that, you are aged between 60 and 70 years. You are a villager and have had no formal education. You come from Marawaka in the Ombura Wanenara District of this province. You have no prior convictions and this is your first ever offence. He also added that you showed your remorse by paying customary compensation consisting of K2,000.00, 7 pigs, 6 blocks of land and a daughter given away in marriage. 

He also drew to the Court’s attention two letters one each from the deceased and your side. These letters in effect say that, compensation in terms of the above has already been paid and that has helped to restore relations. They also said if you are sent to prison, their existence will be affected because there is no father figure like you to help organize and maintain their tribal and village life. I maintain my response to that, that imprisonment would be a direct consequence of your offence and the Court should not be intimidated in its duty to appropriately deal with offenders.

Your lawyer asked the Court to take all of the above into account except the giving away of the girl in compensation. Counsel was correct in making that submission. As Injia J. (as he then was) said in The State v. Paulus Non Pable (11/06/99) N1873:

"…[T]he inclusion of 4 girls [one girl here] as part of the compensation package … is a custom which is repugnant to the general principles of humanity and out-lawed as being illegal and unconstitutional: see In re Miriam Willingal N1506 [1997]." 

In line with the relevant authorities on point, I recommend that a judicial inquiry immediately commence under s. 57 of the Constitution because, I am of the view that the Constitutional rights of the girl who was given away as part of the compensation package were violated.

Now returning to your case, I take all of your lawyer’s submissions into account in order to determine an appropriate sentence for you. In so doing, I note that, the offence of wilful murder is a very prevalent offence. Recent judgments of both the Supreme and the National Courts have acknowledged this prevalence in the offence. The Supreme Court decisions in the cases of Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741 and Sakarowa Koe v. The State (01/04/04) SC739 acknowledged and confirmed that.

Secondly, you used a dangerous weapon to cut the deceased two times. The first cut could have been sufficient to avoid any threats in your mind the deceased might have posed to your life. Hence, as the Court found, the second cut was totally unnecessary but for your intention to kill him.

Thirdly, the suggestion from the evidence before the Court is that, you come from or near the Marawaka government station. Therefore, you had access to the government services including the mechanisms for resolving disputes amicably. The dispute was with your own blood relative. Therefore you could have easily resolved it but you did not do that. There is no evidence of taking the land dispute to the village leaders or village court and failing that, the formal court system to have it resolved amicable. The evidence shows that, instead of doing that, you went to the disputed land and worked on it knowing very well that the deceased had already started work on it and that he would come and continue with. You knew thereby that it would give you the opportunity to argue with or if not kill the deceased and that is what you did.

Finally, you were found guilty after a trial. This meant more time for the Court to sit and arrive at the finding of guilt against you. It also meant extra time and costs for the State, in organizing and securing the appearance of its witness. 

Against these factors in aggravation are your old age and the fact that you have live the whole of your life of well over 60 years as a good law abiding citizen. This is confirmed by the lack of any prior conviction recorded against your name.

Additionally, I note that, you attacked the deceased in circumstances where the deceased had provoked you into killing him in the non-legal sense. In other words, if the deceased did not claim your land and started making his gardens the trouble could not have occurred, ultimately resulting in his death.

Further, I accept that, you have expressed genuine remorse in that, you have said so in Court and more so evidenced by the payment of customary compensation. This does not mean however that, because you paid compensation, you should de excused from your criminal responsibility. This is because human life is very precious or valuable and it cannot be replaced or equated with pigs and any sum of money. For these things cannot replace a human life once brought to an end. It only mitigates the kind of penalty you should receive. Therefore, you remain to be punished by this Court. see Rex Lialu v. The State [1990] PNGLR 487.

Finally, I take into account your personal details and your old age particularly in the context of having lived a good law abiding life over the years you have lived on this earth up to the present time. 

Your Sentence

The Supreme Court judgment in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (supra) and Sakarowa Koe v. The State (supra) recommended a departure from the old sentencing guidelines set by cases like that of Goli Golu v. The State, [1979] PNGLR 653; Ure Hane v. The State [1984] PNGLR 105 and The State v. Laura No 2, [1988-89] PNGLR 193. That was particularly in relation to the categorization of the types of murders and the sentencing tariffs established by those and other cases. In so recommending, the Supreme Court said in Tom Gurua Kerui and David Bawai Laiam v. The State (supra) that the principles in the old cases were:

"…[N]o longer suitable to the situation in the country at this time, especially when one looks at the escalating and seemingly uncontrollable criminal conduct…. The complexity of criminal behaviour and frequency of these violent crimes have transcended new heights that the Courts must seriously be addressing a new trend of sentencing principles to fit the crimes instead of labouring under a false illusion that the tariffs decided more than 10 years ago are still good law. The principles may still be good and applicable, however where they set tariffs or guidelines for sentencing, those must be changed to reflect the degree, enormity and frequency of these crimes.

The Court went on and said:

"We have attempted to review and set new guidelines and tariffs in Simon Kama v. The State (SCRA 34 of 2001), a decision, which we had delivered a while a go today. We reiterate the view that the unlawful taking away of another person’s life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v. State (supra)."

In your lawyer’s submission, the Court was referred to my decision in The State v. Theo Raphael (No 2) (21/02/02) N2181, and submitted that, the sentence in your case should not exceed the sentence in that case. There, the prisoner was found guilty after a trial on a charge of wilful murder. It was also over a land dispute. The prisoner set out to look for the deceased at his house to kill him. On finding him not there, the prisoner chopped down a banana tree and told the deceased family members that, he would kill the deceased. 

Later, when the deceased returned to the village, the prisoner armed himself with a bush knife and a spear and attacked the deceased. The deceased started to run away from the prisoner and ran toward his younger brother’s house. As he was running away, the prisoner first shot him with one of the spears from the back causing him to fall to the ground. He then speared him the second time again from the back when he was already on the ground. As if that was not enough, the prisoner proceeded to use his bush knife to cut the deceased on his head fracturing his skull.

Your lawyer submits without much contest from the State that, the circumstances in that case and yours are similar. He then submits and I accept that, the way in which the prisoner in that case went about in attacking and ending the life of the deceased were more serious than in your case. I also note that, in that case, there was no evidence of any compensation being paid as you did in your case. Further, the prisoner there was a relatively younger man.

Taking into account the particular circumstances of your case, your lawyer submitted and the State conceded to this case not being in the worse category. As such, it was further submitted and I accept that, you do not deserve the death penalty.

Despite the position Mr. Kesan of counsel for the State took, he made submissions in terms that, the wording in the penalty provisions in s.299 of the Code coupled with the opening words in s. 19 of the Code, Parliament did not intent a discretion for the Court but a mandatory death sentence for people found guilty of wilful murder. He then made submission along the lines that, Parliament has already classified the different categories of homicide cases and as such, there is no discretion for the Court to further categorize such cases. 

I noted in the course of Mr. Kesan’s submissions that, there appeared to be merit in his submission, having regard to some of my recent decisions as in the case of The State v. Ben Simakot Simbu (18/03/04) N2573 and the recent Supreme Court judgments I have referred to already in this judgment. Nevertheless, in view of the position already taken by counsel in this matter, the argument was academic and counsel correctly agreed to abandon his argument and take it up in another appropriate case later.

I am bound to follow the Supreme Court decisions in the case of Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (supra) and Sakarowa Koe v. The State (supra). However, I consider I should not do that in this case, because these judgments of the Supreme Court are very recent judgments because of which, counsel were not able to fully acquaint themselves of the importance of those judgments and make appropriate submissions. I will however, not hesitate to follow these judgments in future on the understanding that, both the offices of the Public Prosecutor and the Public Solicitor will take it as their responsibility to acquaint themselves with the judgment as of now if not already done. 

Back to your case, I also accept your lawyer’s submission that, a sentence for you should be in the range of 15 years to 35 years. I add however, that the sentence should not be below any sentence imposed in a murder or manslaughter case, because they are lower categories of homicide cases. In this regard, I note that, in The State v. Paul Yapei (No.2) (26/03/04) N2571, I recently imposed a sentence of 20 years for murder for being part of a group that killed the deceased. There was no evidence of him directly causing the death of the deceased. 

In both the cases of The State v. Paul Yapei (No.2) (supra) and The State v. Ben Simakot Simbu (supra), I considered most of the relevant cases in murder and wilful murder cases, which are relevant here. I need not repeat them all save only to say I have had regard to all of those cases in order to arrive at an appropriate sentence for you.

Taking into all of the above and weighing the factors for and against you as noted above, and the comparable verdicts and the sentencing tariffs, I consider a sentence of 25 years imprisonment less the time already spent in custody appropriate and I impose that sentence.
__________________________________________________________________
Lawyers for the State:				Public Prosecutor
Lawyers for the Prisoner:			Public Solicitor