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State v Lapankiming [2008] PGNC 208; N3459 (18 August 2008)

N3459

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 657 & 658 OF 2008

THE STATE

V

ELIZAH NGUMA LAPANKIMING
&
WARREN JEREMAIAH

Kavieng: Paliau, AJ
2008: August 13th, 18th

CRIMINAL LAW – Sentence – Wilful Murder – Charge of – Guilty Plea – Criminal Code s. 299(1).

Cases cited:

Manu Kovi v. The State (2005) SC789

Counsels:

Mr. Rangan, for the State
Mr. Siminji for the Accused

18 August, 2008

1. PALIAU, AJ: The two accused pleaded guilty to one count each of Wilful Murder. The offence is alleged to have taken place on the 3rd of April 2008 at 9:30 am. The two accused in the company of others were armed with bush knives and spears and chased the deceased, Joe Vosipibungum with the intention of killing him.

2. The reason for the attack was because the deceased made pregnant a lady from their village and the lady gave birth to a baby.

3. The two accused with the others waited for the deceased on a road leading to a soccer oval. They knew that the deceased was to take this road. When the deceased saw them he ran away and took refuge in one of the houses in a nearby village. The deceased knowing that they will finally enter the house ran out of the house towards the river. The two accused were the first to follow him and pursued him until he fell down. They started cutting him on his right hand then his back. The deceased died as a result from loss of blood.

4. The issue that I am to determine is what type of punishment to be imposed on the two accuseds.

5. The offence of wilful murder is provided under Section 299 (1) of the Criminal Code. It provides that a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder. Subsection (2) states that a person who commits wilful murder shall be liable to be sentenced to death.

6. The maximum term of imprisonment for this offence is death. Subject to Section 19 (1) (a) of the Criminal Code, a person liable to death may be sentenced to imprisonment for life or for any shorter term.

Antecedent Report

7. Both accused have no prior convictions.

Allocutus

8. Both accused expressed remorse and apologised to the Court and the family of the deceased. They said they have not been in conflict with the law before. This is their first time. They will not cause any more trouble. They plea to the Court to be merciful and be lenient to them. They are both married with children.

Pre-Sentence Report

9. The Court was not provided with a pre-sentence report to assist in its consideration of an appropriate penalty.

Submission by Defence Counsel

10. Mr. Siminji submitted that the accused, Warren Jeremiah is 24 years old and married with two (2) children. His parents are both alive and have three (3) brothers and four (4) sisters and he is the first born in the family of eight (8) children. He attends SDA church. He has no formal education and unemployed. He lives an ordinary village life as a subsistence farmer. He committed the offence on 3rd April 2008 and surrendered to the Police on 6th April 2008. He has been in custody for four (4) months.

11. The accused, Elizah Nguma Lapankiming is 22 years old and married with one (1) child. His wife and child were back at New Hanover. His father has passed away and mother is alive. He has two (2) brothers and two (2) sisters and the first born in the family of five (5). He has no formal education and no formal employment. He lives an ordinary village life as a subsistence farmer. He has been in custody for four (4) months.

12. Mr. Siminji further submitted that to some extent the attack on the deceased was provoked by the deceased conduct in the community, that the deceased was a womanizer and rapist in the village. He raped 3 of the prisoners’ tribal sisters and made pregnant one of their sisters. The deceased was a menace to the women folk in their community.

13. There was in effect a defector provocation by the deceased conduct that provoked the prisoners to react in the way they did. The prisoners were ordinary village young man and the conduct of the deceased was such that any ordinary village man faced with that type of situation would have done what they did.

14. The prisoners pleaded guilty which saved the State and the Court the time and money. Conceded that dangerous weapons were used. This was an ordinary wilful murder case.

15. Mr. Siminji referred to the case of Manu Kovi v. The State (2005) SC789 where the Supreme Court categorized wilful murder cases into four (4) categories and they are:

- The first category is at the lower end of the scale for simple cases of wilful murder which does not involve any weapons, brutality or viciousness, pre-meditation and or planning and the offender pleads guilty attracts sentences between 15 to 20 years.

- The second category is for cases which involve an offensive weapon, some planning, viciousness or brutality and a strong desire to kill attracts sentences between 20 to 30 years, whether or not the offender pleads guilty.

- The third category is for cases which involve dangerous and offensive weapons, pre-planned, pre-meditated brutal killing; killing in cold blood; killing of innocent, defenceless or harmless person, strong desire to kill, killing accompanied by other serious offence, victim young or old attracts life imprisonment, whether or not the offender pleads guilty.

- The fourth and final categories are serious cases in which more serious elements than those present under first and the other categories exist. This category attracts death penalty, whether or not the offender pleads guilty.

16. Mr. Siminji submitted that as this was an ordinary wilful murder case, he recommended that the range of punishment on the second category be imposed on the prisoners.

Submissions by the State

17. Mr. Rangan assisted and also referred to the case of Manu Kovi and recommended that the range of punishment in the second or the third category be imposed on the prisoners.

18. In relation to the issue of the deceased womanizing, he submitted that the Court should not consider it as there is no evidence adduced in Court. The prisoners simply had no excuse in law.

Decision as to the appropriate penalty

19. To determine the appropriate penalty the following decision making process will be followed:

Step 1: What is the maximum penalty?

Step 2: What is the proper starting point?

Step 3: What should be the head sentence?

Step 4: Should the pre-sentence period in custody be deducted from the term of imprisonment?

Step 5: Should all or part of the sentence be suspended?

Step 1: WHAT IS THE MAXIMUM PENALTY?

20. The maximum penalty for the offence of wilful murder is death, subject to Section 19.

Step 2 : WHAT IS THE PROPER STARTING POINT?

21. I have considered the submission by both counsels and I do not consider that there was defector provocation as there was no evidence adduced to verify this. There was no evidence that the deceased was a womanizer and menace to the woman folks in the community. There was also no evidence that the deceased had raped three sisters of the accuseds and had impregnated another.

22. The accused had no excuse in law when they took the life of a human being. A life of a human being must be treated with respect. There are laws in place that the accused can utilize to punish the deceased and not taking the law into their hands like they did. They must now face the full force of the law for what they did to a human being.

23. I have considered the Manu Kovi case and I am of the opinion that the killing in the present case falls into category 2. There was premeditation or pre-planning and offensive weapons were used. There was a strong desire to kill. The accused had knives and spears with them and were waiting for the deceased with the intention to kill him.

24. The range of punishment therefore is between 20 to 30 years. I consider the starting point to be 25 years.

Step 3 : WHAT SHOULD BE THE HEAD SENTENCE?

25. As the starting point is 25 years, I will start from there and weigh the mitigating and aggravating factors. If the mitigating factors are more, the head sentence should be below the starting point. If the aggravating factors are more, the head sentence will be above the starting point.

Mitigating Factors

- No prior convictions;

- Plea of guilty had saved the Court’s time;

- Expressed remorse;

- Co-operated with the Police in their investigations;

- First time offenders.

Aggravating Factors

- Use of dangerous and offensive weapons, knives and spears;

- Pre-planned with intention to kill.

Determination

26. After weighing the mitigating and aggravating factors, the mitigating factors outweigh the aggravating factors by 3 factors. The head sentence should be below the starting point. I therefore impose a head sentence, of 23 years.

Step 4 : SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

27. In compliance with Section 3 (2) of the Criminal Justices’ (Sentences) Act, I will deduct the whole of the pre-sentence periods in custody from the head sentence, which is 4 months. I impose a term of 22 years 8 months.

Step 5: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

28. As I have not been provided with a pre-sentence report, I will not suspend all or part of sentence.

Sentence

29. WARREN JEREMIAH & ELIZAH NGUMA LAPANKIMING, having been convicted of the crime of Wilful Murder, you are both sentenced as follows:

Length of Sentence imposed - 23 years

Pre-Sentence period deducted - 4 months

Resultant length of Sentence to be served - 22 years & 8 months

Amount of Sentence suspended - Nil

Time to be served in custody - 22 years & 8 months for each one of you.

Sentenced accordingly

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused