N2571

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 97 of 1998

THE STATE

-V-

PAUL YEPEI
(No. 2)

VANIMO: KANDAKASI, J.
2004: 18th and 26th March

DECISION ON SENTENCE

CRIMINAL LAW- Particular offence – Wilful Murder – Group attack - Strong and credible circumstantial evidence suggesting accused involvement and playing a significant role – Co-accused received 15 years in hard labour – Need to avoid disparity – Prisoner playing lead role, male and holding position of leadership warrant parity – 25 years sentence imposed - Criminal Code (Chp. 262) s.299.

Cases cited:
The State v. Ben Simakot Simbu CR 1413 of 2002 (delivered on 26th March 2003).
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. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003.
 The State v. Ian Napoleon Setep (Unreported judgment delivered on 31/10/96) N1478.
The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65.
The State v. Godfrey Edwin Ahupa (Unreported judgment delivered on 20/05/98) N1789.
The State v. Ombusu, Unreported National Court Judgment, dated 17th February 1995.
Ombusu v. The State[1996] PNGLR 335.
The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (a decision of Woods J. in Kimbe on 7th February 1997).
The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332.
Tony Imunu Api v. The State (29/08/01) SC684.
The State v Tony Pandau Hahuahoru (No.2) (Unreported judgment delivered 21/02/02) N2186.
Winugini Urugitaru v The Queen [1974] PNGLR 283.
Andrew Uramani & Ors v The State [1996] PNGLR 287.

Counsel:
F. K. Popeu for the State
D. Kari for the Accused

26th March, 2004

KANDAKASI J: 	You were found guilty on a charge of wilfully murdering one Jack Mandari (deceased) on 2nd March 1997 here in Vanimo. That was after trial. 

The Court asked you to address it on the kind of sentence you should receive. In your address, you tried and in fact maintained your claim of innocence saying the actual killers are out there and said sending you to prison will shut the case completely. The Court informed you and it reiterates that, if that is true, you should disclose the names of the real killers so they could be dealt with.

The Relevant Facts

The facts of the case are set out in full in the decision on verdict and I need not repeat them here. However, for the purposes of sentencing, I note the following:

•	The deceased was well known and a good friend to you;
•	You and the deceased were on a women and drinking engagement from the afternoon of 1st to the early morning hours of 2nd March 1997 using a government or public motor vehicle;
•	Moments before the deceased was attacked, you were with him and two women at a beach near a place known as the gravel pit;
•	There the deceased was attacked by a group of unknown men;
•	The deceased was rendered unconscious at that stage;
•	You helped the attackers to take the deceased to another vehicle; 
•	You then went into a cover up operation by driving the vehicle you, the deceased and the women had been using and later pushing it off the road;
•	You then took the deceased off from the other vehicle and placed him next to the vehicle you had used and pushed off the road to make it look like an accident;
•	You did this after taking the deceased to a river and having him washed;
•	Medical evidence establishes that the deceased died from a blow to his head, which rendered him unconscious and later bled to death;
•	Your actions were contrary to that of a friend but one with intent to ensure the death of the deceased.

I find that this was an uncalled for killing brought about with the involvement of women and beer and abusing government property, principally by two experienced public servants holding responsible positions. If there was no beer and woman involved along with the abuse of the government or public motor vehicle, the death would not have occurred. A number of people and not you only, brought about the death of the deceased. You alone should know who was involved, why and how. If you do have a conscious and if indeed the deceased was a good friend, as you claim then, it is incumbent on you to name those involved to clear your conscious and to ensure that your soul and that of the deceased rest in good peace. 

In addition to these facts, I note also your personal background. You are aged 47 and are married with three grown up children. You are well educated and have held various responsible positions with the government, with the latest as District Administrator for the Aitape/Lumi District here in the Sandaun Province. 

Bearing these facts in mind, I now turn to the offence and the law concerning sentences in these types of cases. I do so by repeating what I have just said in relation to the case of The State v. Ben Simakot Simbu CR 1413 of 2002, delivered this morning.

Offence and Sentencing Tariffs 

Section 299 of the Criminal Code creates the offence of wilful murder and prescribes its penalty. The penalty prescribed is death. This is subject to s. 19 of the Code, which has allowed for sentences other than death.

It is trite law that the maximum sentence prescribed in any offence is for the worse category of the offence under consideration. In the case of wilful murder, the Supreme Court made that clear in Goli Golu v. The State. [1979] PNGLR 653. Numerous other judgments, such as the one in Ure Hane v. The State [1984] PNGLR 105 and Avia Aihi (No 3) v. The State [1982] PNGLR 92, reiterate that. 

Bredmeyer, J. in Ure Hane v. The State, (supra) without exhausting the list, provided the following list of cases he considered serious kinds of wilful murder from pages 107-109 of the judgment:

"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."

His Honour then said at p. 109 of his judgment:

"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 must 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."

Since then the law changed in terms of the prescribed penalty. As I noted in The State v. Andrew Keake (Unreported judgment delivered on 20/11/00) N2003 after referring to Goli Golu v. The State, (supra) Ure Hane v. The State (supra) and Avia Aihi (No. 3) v. The State (supra):

"Since the judgment 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."

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 (Unreported judgment delivered on 31/10/96) 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."

Earlier, Woods J. in The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65, in my 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 Ahupa (Unreported judgment delivered on 20/05/98) N1789 where he said: 

"… [W]hen 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 (supra) where one Judge recited a list of different categories of wilful murders and the other two focused on the extenuating circumstances. 

Similarly, in the earlier case of Avia Aihi v. The State (supra) whilst the members of the Court used the words "worst case type" or most serious type of case," there was no listing of the worst type of cases. Each member, instead, referred to the surrounding extenuating or aggravating features and decided accordingly. In the same case, the then Chief Justice admitted at p. 96, in these terms:

"What is ‘the most serious type of case’ of any offence is very difficult to define with scientific precision. I cannot attempt a definition myself." 

If anything, this difficulty, in my view, demonstrates the fact that the sanctity of life itself is not easily open to categorizations. As such, there is an abundance of difference of opinions as to what amounts to a worse case of wilful murder, warranting the maximum penalty of death. It is thus possible that one judge could find a case to be a worse case of wilful murder and another judge could easily come to a different conclusion, given that there is no fixed mathematical or scientific formula to go by. In so doing, the kind of sentences imposed may differ greatly.

Amidst this difficulty, there appears to be consistency in approaches by the Courts. A case with more aggravating features could qualify to be a worse case, whilst one with more factors in mitigation would be less serious, even though they will all be wilful murder cases, where there is an intention to kill.

Since Parliament increased the maximum penalty of life imprisonment to death for the offence of wilful murder, the National Court imposed the death penalty in three cases already. The first case was The State v. Ombusu, Unreported National Court Judgment, dated 17th February 1995. On appeal, a five men bench Supreme Court quashed the National Court judgment on technical grounds: see Ombusu v. The State [1996] PNGLR 335.

The second one was in the case of The State v. Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, which was a decision of Woods J. in Kimbe on 7th February 1997. The appellants appealed to the Supreme Court on 11th February 1997 against both conviction and sentence of death. However, after grant of legal aid, the Public Solicitor filed a supplementary Notice of Appeal on 23rd July, 1997 in which he appealed against conviction only. The Supreme Court comprising Amet CJ., Kapi DCJ. and Sevua J., dismissed the appeal against conviction on 4th May, 2000: see Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v. The State, Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4th May 2000. Therefore, the death penalty remains undisturbed.

The third and more recent one is the decision of his Honour Salika J. in The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332. In that case, the prisoner killed two young men with whom he had been drinking alcohol. He killed them by strangling their necks. The evidence did not directly show that the prisoner killed both persons but only one of them. Based on the circumstances surrounding the death of the other deceased, the Court found that the prisoner also killed the other deceased.

Earlier, in Tony Imunu Api v. The State, (Unreported judgment 29/08/01) SC684, the Supreme Court of which I was a member, was of the view that the killing in that case was of the worse kind. That involved the killing of an innocent school student in bizarre circumstances. When police eventually located the deceased body, he was lying naked face down with faeces still on his anus. Medical evidence showed multiple depressed fractures to the skull. On the left frontal area were a 3 cm diameter crepitus and a 4 cm crepitus on the right. On the left temporal area was a 10 cm cross-depressed fracture while a 6 cm fracture was on the right side. There were multiple abrasions on the right shoulder and abdomen and faeces found around the rectum with dilation of 5 cm and some excoriation of rectal wall.

In dismissing an appeal against both conviction and sentence of life imprisonment, the Supreme Court said:

"We are of the opinion that this was a worst type of wilful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case 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.
…
… [W]e 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 categorized 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. We say this without in anyway trying to usurp the power and independence of trial Judges in the National Court."

A careful consideration of these cases and a general consideration of the past sentences in wilful murder cases, reveal an important trend. The offence of wilful murder carried a maximum sentence of life imprisonment. This did not deter people who were inclined to killing, committing the offence and was becoming very prevalent. Parliament therefore amended s. 299 of the Code and increased the penalty of life imprisonment to death. Despite this legislative change, no death penalties were imposed until The State –v- Ombusu, (supra) when on 17th February 1995, Doherty, J imposed it for the first time. Not many judges followed that courage until The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (supra) when Woods J imposed the death penalty for the second time almost two years later on 7th February 1997. Although many wilful murder cases have gone before the National Court, since then, no death penalties were imposed until Salika J. decided to impose it in The State v. Arua Maraga Hariki (supra) on 3rd February 2003. The most recent one is the decision I just handed down this morning in The State v. Ben Simakot Simbu (supra).

No doubt, therefore, there has been great reluctance in the National Court to impose the death penalty. On the other hand, offenders have not shown any reluctance in committing serious wilful and other types of killing. Offenders appear to be finding it easier to readily commit wilful murders and get away with determinate term of years to life imprisonment. There simply appears to be no deterrence by the kind of sentences in the majority of the wilful murder cases that have proceeded to trial and concluded with a sentence. In view of this, the highest Court of the land in Tony Imunu Api v. The State, (supra) has suggested a serious consideration of the death penalty in future wilful murder cases.

Sentence in Your Case

In your case, the State is not asking for the maximum prescribed sentence of death. Instead, it agrees with your lawyer’s submissions that, a sentence other than the death penalty is appropriate. Noting that your co-offender a female called Lucy received a sentence of 15 years after a trial, your lawyer argues for a similar sentence. The State argues however, that because you were a man, that you were a leader holding a responsible position in society and that you played a major role than your female co-offender, you deserve a higher sentence. The submission is for a sentence beyond 15 years to life imprisonment.

It is clear law that, co-offenders require the same treatment when it comes to sentencing, if there is nothing warranting a different treatment. However, the co-offenders playing different roles in the commission of an offence warrant a different treatment when it comes to their sentence. An offender who plays a major role is liable to receive a higher penalty than the one who plays a lesser role. Likewise, if the personal antecedents of the offenders are different, they require different treatment.

In the case of The State v Tony Pandau Hahuahoru (No.2) (Unreported judgment delivered 21/02/02) N2186, I discussed the parity principle. In that context, I made the following remarks after referring to a number of local cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State (supra) and Andrew Uramani & Ors v The State [1996] PNGLR 287:

"A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them." 

Applying these principles to your case, I accept the State’s argument that, your case requires a different treatment from the treatment received by your co-offender. This is because you were a male participant while your co-offender was a female. You were also in a position of leadership and responsibility as then District Administrator for the Aitape Lumi District. People holding such positions have a duty to respect and uphold the rule of law. They represent the government at that level. As such, their conducts should be beyond reproach, in order to ensure the common people respect the law and conduct themselves appropriately. Getting drunk and running around with women other than their wives in the middle of the night abusing government vehicles is certainly a conduct that is unacceptable and intolerable by anyone in society. It is the unbecoming conduct of people like you, holding a responsible government office that are contributing to the serious break down in law and order in the country. Accordingly, a severe penalty against you is appropriate to send a message to people in positions similar to the one you had, that your kind of conduct is unacceptable. Your female, co-offender did not hold any such position.

Further, you did play a direct role in bringing about the death of the deceased by failing to take him to the hospital when required. Instead, you went into a cover up operation and in the process, caused the deceased to lose his life.

Turning then to an appropriate sentence for you, I accept that this is not a worse case of wilful murder. There is no evidence to show that you were the one that landed the fatal blow to the deceased’s head that eventually led to his death. However, you were a part of a group just as Lucy, your co-offender was, that was responsible for his death.

In these circumstances, I will start with 15 years being the sentence your co-offender received. I then consider it appropriate to add a further 5 years to show the society’s disapproval of your conduct. You serve a little more but to avoid any feeling of serious disparity, given the sentence your co-offender received, I consider that the addition of the 5 years appropriate. Ultimately, therefore, I impose a sentence of 20 years in hard labour less 1 year 8 months and 1 week you have already spent in custody awaiting your trial and sentence. I order that you serve the balance of 18 years, 3 months and 3 weeks in hard labour at the Vanimo Correction Service. A warrant of commitment in those terms shall be issued forthwith.
________________________________________________________________________
Lawyers for the State:				The Public Prosecutor
Lawyers for the Accused:			The Public Solicitor