N3280

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1767 OF 2003

THE STATE

-V-

TUKAL WANINARA (N0.3)

Kokopo: Lenalia, J.
2006: 5 December
2007: 7 February

CRIMINAL LAW – Wilful murder – Charge of – Trial – Finding of guilty to a lesser charge – Criminal Code ss.300 and 539. 
. 
CRIMINAL LAW – Finding of guilty to a charge of murder – Sentencing principles – Offences of murder – Killing aggravated by application of offensive weapon – Term of years appropriate. 

Cases cited:

Wanosa & Others v The Queen [1971-1972] PNGLR 90
The State v Paul Kundi Rape [1976] PNGLR 96
Joseph Maino v The State [1977] PNGLR 404
Acting public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299
The State v Rex Lialu [1988-89] PNGLR 449
The State v Laura (N0.2) [1988-89] PNGLR 98
Lawrence Simbe v The State [1994] PNGLR 38
The State v Joseph Ulakua (23.5.02) N2240
The State v Tom Keroi Gurua & Others (11.12.02) N2312
The State v Kevin Anis & Martin Ningigan (7.3.03) N2360
Mary Bomai Micheal v The State (1.4.04) SC737
Sakarowe Koe v The State (1.4.04) SC739
Simon Kama v The State (1.4.04) SC740
Manu Kovi v The State (30.5.05) SC789
The State v Kila Peter (23.3.06) N3018

Counsels:

Mr. L. Rangan, for the State
Mr. J. Isaac, for the Accused

7 February, 2007

1. LENALIA, J: The accused pleaded not guilty to one count of wilful murder contrary to s.299 of the Criminal Code. A short trial was conducted at the end of which the lawyer for the accused made a no case submission on the basis of the principles enunciated in the case of The State v Paul Kundi Rape [1976] PNGLR 96. On 18th of October last year, the court made a decision and ruled that there was a prima facie case made out against him and the accused was called upon to answer. 

2. After the accused gave his evidence he was asked if he had any witnesses to be called. He declined to call any. I heard counsels’ submissions and on 5 December last year, I handed down my decision on which I found the accused guilty of an alternative charge of murder under s.300 by virtue of s.539 of the Criminal Code.

BRIEF OF EVIDENCE ON TRIAL

3. Briefly the evidence on trial from which the court found the accused guilty for the alternative charge of murder is as follows. On 13 July 2003 at Vunadavai village, North Coast area of this Province, the victim in this case Wartoli Votoi Kolis was around with a number of friends in Robin Palaua’s house cooking some food. 

4. While they waited for the food, they laid on the bed or a sort of platform to rest and told stories. When they were resting the evidence by the prosecution was that the victim recalled that he had placed some bananas on the fire to be roasted and he got up from where he was sleeping and walked over to the fire place to turn the bananas over lest they were burnt. As he walked over to the fire place, the accused suddenly charged at him and attacked him by using a long bush-knife.

5. The evidence by the State came from three statements which were tendered by consent. Those statements are for witnesses number 4, 6 and 7 (Exhibits "A", "B" and "C"). The oral evidence came from Mr. Esekia Kaumat and Senior Police Constable David Tomur. 
Witness Esekia Kaumat did not actually see what occurred on the scene as he was a distance away. Esekia’s evidence is that, he was sitting down on the road junction with another person by the name of Tobby Sakius. While they sat down and chatted, they were surprised when the accused ran out to them from a little track to the main road and passed them without saying good evening. 

6. He did not say anything to them. When he returned a few seconds later, Esekia offered him a smoke but the accused did not accept the offer and did not even say anything to this witness and Sakius. This witness said when the accused came to them, he had a long coconut basket and he had in his possession a long bush-knife. 

7. He said while they were talking with the accused, they heard people crying. Having heard people shouting and crying on the scene, they ran up there and found that the victim was lying down on the ground with all his intestines lying beside him outside the stomach on the ground. 

8. It is the prosecution evidence that, when the accused charged at the victim the accused either intended to cause grievous bodily harm or that he caused the death of the victim by means of an act which was done in prosecution of an unlawful purpose. The unlawful act in the circumstances of this case was the charging toward the victim and assault caused to him by the accused. As stated in the case of Joseph Maino v The State [1977] PNGLR 404, the dangerous act relied upon by the prosecution and unlawful purpose are distinct actions which the State must show in evidence. Such distinct criminal act was proven to the required standard of proof beyond reasonable doubt when the prisoner was found to have charged or rushed at the victim with the intention to cause grievous bodily harm. 

ALLOCUTUS

9. When the court administered allocutus to the prisoner on 7 December last year, the accused said although the court had found him guilty, he feels that, he is not guilty of the charge because he did not intend to kill the victim and the victim was his real cousin. He said that after the killing, the relatives of the victim broke down five (5) houses belonging to the accused and his relatives and carried them away. For what they did, the prisoner said that his relatives did not report such action to the police. 

10. He further submitted that ten (10) blocks of cocoa and coconut were taken away by the deceased’s immediate relatives. Further that, his relatives assisted the victims’ relatives by buying the coffin for the burial of the victim and they also paid shell-money and cash to the victim’s family by way of compensation. 

11. He said he is now worried about his old mother who is now very old and he does not want the Almighty God to punish him for not looking after his own mother who cared for him while he was small. He asked the court to exercise leniency to him on sentence.

ADDRESSES

12. On the accused’s background history, Mr. Isaac submitted the following antecedents on behalf of their client:

-	Accused is married with one child,
-	23 years old,
-	he had no formal education,
-	he is the fourth born in a family of seven siblings,
-	his wife has left to another man while accused was in custody,
-	that all this time he has been a subsistent farmer,
-	a member of the United Church of Papua New Guinea and Solomon Islands and
-	that the accused is a first offender. 

13. Mr. Isaac on his final address on sentence submitted that the court should take into account the fact that the accused is a first offender and the fact that their client has been kept in custody for some three (3) years four (4) months by the time the court was addressed, awaiting his trial. He asked the court to take into account the fact that the accused’s relatives have paid compensation. He sought to tender a statement written by a person named at the bottom of that statement as Towalaun Waninara. 

14. This person does not give any information on what his position is in the village. That is to say whether he is a church pastor, a councillor, a committee or a member of the Local Level Government. That statement was addressed to the O.I.C C.I.D office in Kerevat. 

15. Though Mr. Rangan objected to the tender of this letter, I decided to accept it on the basis that, it might help the court to determine whether what the accused stated on his allocutus was true or not. 

16. Strictly speaking, if the defence wanted a pre-sentence report, they should have requested for an adjournment to enable the court to give direction to the Probation Officer to compile a means assessment report or a pre-sentence report to comply with ss.2 (2) and 4 of the Criminal Law (Compensation Act 1991) and ss. 13, & 25 of the Probation Act, Ch.N0.381. 

17. In the future, I urge counsels particularly defence lawyers to apply the above provisions to pursue their clients’ cause in accordance with the terms of the above legislations.

18. Mr. Isaac submitted that having regard to the evidence adduced by the State against the accused, an appropriate sentence should be in the vicinity of eight (8) to ten (10) years imprisonment. 

19. For the prosecution Mr. Rangan replied to the address by the defence counsel that, the accused is stubborn in the sense that he knew that he had caused the death of the victim but yet he chose to run a trial when he was fully responsible for the death of Wartoli Votoi Kolis. 

LAW

20. The maximum prescribed penalty for the offence of murder under s.300 of the Code is subject to s.19 life imprisonment. That means the court has discretion to impose a term of years lesser than imposing a life sentence. The defence counsel cited the case of Sakarowe Koe v The State (2004) SC739.

21. I do not want to rely on the authority of the case because that was a case of manslaughter. 

22. It might not appear clear from the beginning of the above judgment if it was a murder or manslaughter case but as you go to page eleven (11) of that judgment, the Court was critical a little bit about why the Public Prosecutor had chosen to present the indictment for the offence of manslaughter rather than for wilful murder and failing that, murder.

23. In your case Tukal, the offence you committed is punishable by life imprisonment. That shows how serious the parliament thought about unwanted killing when someone is killed under the circumstances defined in s.300 should be sentenced to life imprisonment. The wording of the above Section states:

"300.	Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph.

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a) did not intend to cause death; or

(b) did not know that death was likely to result."

24. The case before me is homicide and the life of the victim was taken away prematurely. The prisoner went to the scene with a long bush-knife when he knew that the victim was there on the scene cooking with other boys. 

25. Some few days before the offence was committed, the evidence shows that the victim swore at the prisoner. Circumstantially, the accused went to the scene to cause some grievous bodily harm to the victim. 

26. Let me begin by saying that, the basic principle that the sanctity and value of a human life is far more precious and valuable than anything else and no amount of compensation nor even any remorse would restore or revive a life lost. 

27. Of all precious items created by the Almighty God for enjoyment and the benefit of the human race, life is more precious. 

28. The unlawful taking of another person’s life has always been serious and as such offenders must be appropriately punished depending on whatever aggravations and mitigations that might be considered relevant in each case. 

29. The sentencing tariffs set in The State v Laura (N0.2) [1988-89] PNGLR 98 would set the basis for any considerations for appropriate sentences for the crime of murder. The following guidelines were taken as appropriate sentencing guidelines for offences of murder:

-	a plea of guilty without any special aggravating factors a sentence of (6) years

-	a sentence less than six (6) years may be imposed where there are special mitigating circumstances,
-	on a plea of not guilty, a sentence of 12 years or more where aggravating factors are shown by the evidence.

30. The prisoner in that case pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He was sentenced to a term of eight (8) years since there were no specific mitigating factors. 

31. Then later in the case of Lawrence Simbe v The State [1994] PNGLR 38 the Supreme Court adopted the above guidelines and applied them. In that case, it was an appeal against a sentence of fourteen (14) years following a plea of guilty to a charge of murder. 

32. Dismissing the appeal, the Supreme Court said, the principle is that each case must be decided on a case-by-case basis, always remembering that the penalty laid down by s.300 is life imprisonment. 

33. Since the above cases, the National Court judges have progressively increased the sentences for the crime of murder and the other homicide cases such as wilful murder, manslaughter and homicide. 

34. Let me quote a few cases which illustrate the current trend of sentencing in cases of murder. In The State v Joseph Ulakua (23.5.02) N2240, the prisoner was sentenced to a term of 20 years for killing his wife after she ran away from him. The victim allegedly had affairs with several men in the prisoner’s own village. He pleaded guilty to the charge and had no previous convictions. 

35. In The State v Tom Keroi Gurua and Others (11.12.02) N2312 Kirriwom, J; imposed sentences of 50 years and 20 years imprisonment on other co – prisoners for killing the father of the deceased victim who went in aid of his daughter whom the offenders tried to abduct. The gunmen received the highest penalty of 50 years while others received 20 years. 

36. One of the prisoners, David Laiam Bawai appealed to the Supreme Court. The Court dismissed his appeal and said the 50 years sentence was still very lenient and commented that instead the prisoner should have been sentenced to life. 

37. In The State v Kevin Anis & Martin Ningigan (7.4.03) N2360 Kandakasi, J; sentenced the prisoners to terms of 37 years imprisonment. In that case the prisoners were part of a gang that executed an armed hold up on motorist travelling along the Sepik Highway. They planned to execute the planned armed robbery but their plans went bad resulting in the killing of a passenger. The prisoner was not the gunman. That case went by trial. 

38. In the case of Simon Kama v The State (1.4.04) SC740, the appellant was sentenced by the National Court to an imprisonment term of 25 years on a plea of guilty to a charge of murder. He appealed on the grounds of excessiveness. The appeal was dismissed on the grounds that, the sentence was not excessive. 

39. The Court commented in the above case that, there is now prevalence of the offences of homicide cases such that, sentences for wilful murder, murder and manslaughter should be reviewed to reflect the seriousness of those offences. 

40. The Court in the case of Simon Kama v The State (supra) also decided that the guidelines set by The State v Laura (N0.2) and Lawrence Simbe v The State (supra) for murder cases are relevant with certain variations. The Court said at page 23 of the judgment:

"(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment".

41. The Court commented at page 23 to 24 of the judgment that where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, it should or may warrant a sentence lower than any of the tariffs suggested above. 

42. The suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons in case involving very serious aggravations and even where there are special mitigating circumstances.

43. In Mary Bomai Michael v The State (1.4.04) SC737, the appellant appealed against the sentence of 12 years for the offence of murder. She was found guilty after a trial was conducted. She appealed on the grounds that the sentencing court did not consider her submissions, and secondly that the medical report was disregarded. 

44. The final ground of appeal was that the sentence imposed on her was too excessive. That case involved the appellant killing her husband following an argument. 

45. The appeal was dismissed because the Court found that, the sentence of 12 years was too lenient. The court commented that the appellant should have considered herself fortunate for receiving such sentence. The Supreme Court even warned that in future appeals the Supreme Court should exercise powers given it by s.23 (4) of the Supreme Court Act to increase sentences where it considered rather inadequate as in that case. 

46. In Manu Kovi v The State (31.5. 05) SC789 the Supreme Court reviewed the sentencing guidelines for homicide cases and commented that, since the case of The State v Laura (N0.2) (supra) the courts have repeatedly warned that due to the prevalence of homicide cases, sentences for offences of murder and other homicide cases will increase and the courts should impose sentences beyond the tariffs suggested in that case. The Supreme Court in Manu Kovi v The State (supra) suggested the following sentencing tariffs for murder cases: 

"1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years16. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors17. 

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment18.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years. 

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc .These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime".

47. My view on the suggested tariffs set by the Supreme Court for any homicide cases or any other cases is that they provide a useful guide in the exercise of sentencing discretion. As it has always been said life is precious and when it is lost, that is the end of life. 

48. So that any sentences imposed for homicide crimes must reflect the serious view which the legislature took over loss of human life in fixing the maximum penalty for each category of homicide cases: The State v Rex Lialu [1988-89] PNGLR 449.

49. On the issue of compensation, it was submitted on behalf of the prisoner as well as the prisoner said in allocutus that, the deceased relatives destroyed some five houses belonging to the accused and his relatives. Some cocoa and coconut blocks owned by the prisoner’s relatives were seized by the immediate family members of the deceased. 

50. Payment of compensation in Papua New Guinea plays an important role in all communities. It is intended to restore peace and harmony between the relatives of those affected in a dispute. In cases of deaths, compensation for the loss of human life caused by a wrongful action of another person is practiced in many traditional societies in Papua New Guinea and particularly in the Highlands region. 

51. I have noted in the very recent past that such practice is also gaining prominence in costal Provinces and demands for compensation for death is very common. It does not mean that there were compensation demands in coastal provinces. Amounts of cash and goods now demanded are almost as high as those claimed in the Highlands region. 

52. But compensation cannot restore life and it cannot be used to pay for the wrong committed by an offender. However it has been said that, compensation is a relevant mitigating factor: Manu Kovi v The State (supra) see also Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

53. What mitigations should the court consider in favour of the prisoner? To answer the question above, I will adopt some relevant considerations set out by Cannings, J; in The State v Kila Peter (23.3.06) N3018. That was a case of manslaughter and a killing in a domestic type situation where the prisoner was angry with her husband who was staying with his second wife in another village. 

54. She walked two kilometres in the middle of the night to the house where the husband was sleeping. She armed herself with a knife and when she found him they argued and had a fight. In the course of that fight she stabbed him in the back inflicting a fatal wound.

55. There may be only two relevant considerations in favour of the accused. First is that the accused is a first offender and secondly he co-operated well with the police. I also take into consideration some compensation has been paid by the prisoner’s relatives. 

56. However on the other hand I consider as aggravation, the fact that, a life was lost prematurely due to the prisoner’s dangerous action. 

57. He went to the scene well armed with a long bush-knife. He attacked the unarmed victim with a lethal weapon. The prisoner did not show any remorse at all for taking away the life of his own cousin brother. 

58. This is reflected by the accused’s statement on allocutus. He still maintained that he is innocent after he had been found guilty on an alternative charge. 

59. The attack by the accused on the victim cannot be classified as a "ferocious" one. Be that as it may a life was lost. The instant case falls into the second category in Manu Kovi’s case (supra). That is to say the accused could be sentenced to a term between 16 – 20 years imprisonment. 

60. In the instant case, after taking into account all mitigations on one hand and the aggravating circumstances on the other, I am of the view that the appropriate penalty in the circumstances of this case is a term of 18 years imprisonment. He is therefore sentenced to an imprisonment of 18 years. The time spent in custody shall be deducted. He will serve the balance.
___________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for Accused