N3970

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 390 OF 2008

THE STATE

V.

ALWYN WANI
Accused

Wewak: Davani .J
2010: 12th, 13th April

CRIMINAL LAW – Wilful murder – s.299 - different weapons used – aiding and abetting – s.7 of Criminal Code.

CRIMINAL LAW – aiding and abetting – accused verbally encouraged others – accused involved in chase up to the killing.

CRIMINAL LAW – intention to kill – consideration of surrounding circumstances – wilful murder – killing in horrendous circumstances – mitigating factors rendered nugatory - life imprisonment.

Cases Cited:

John Anis Pok v The State (1983) SC 254
Manu Kovi v The State (2005) SC 789 
Porewa Wani v The State [1979] PNGLR 593
Ure Hane v The State [1984] PNGLR 105

22nd April, 2010

SENTENCE

1.	DAVANI .J – On 13th April, 2010, I found the prisoner guilty of one count of wilful murder, of having aided and abetted in the killing of one Jilsco Huande ('deceased')

Evidence

2.	The evidence on which I found the prisoner guilty were that on 2nd November, 2007, the prisoner together with Wain Gai, Cliveson Ban and Kelvin Wani, attacked and killed the deceased.

3.	The detailed facts are already set out in my published reasons on Verdict. However, for the purposes of sentence, it is necessary that I reiterate facts or evidence constituting or which led up to the killing, during the killing and after the killing.

4.	The prisoner and others named, were involved in a fight with other people from Mamare Village, Angoram, East Sepik Province. The accused are from Mindimbit Village. They were at Mamare Village for a dance when a fight, involving youth from Mamare and Mindimbit Villages, started. The fight escalated and spilled over to the outside where the prisoner and others then chased Basil Singavi, the main witness in this case. Basil Singavi ran down to the river's edge where he started releasing Mindimbit canoes that had berthed there. The evidence is that whilst Basil Singavi was running down to the river, that the deceased, aged 17 years, followed him. The deceased had a torch with him.

5.	At the river's edge, the prisoner and others caught up with Basil Singavi. Upon seeing them, the witness Basil turned to confront them. Wain Gai, the prisoner's companion, swung a 1 metre long bush knife at Basil. The witness, Basil ducked, then dove into the river to escape. The deceased did the same but instead of jumping into the river, jumped into a canoe and pushed off, drifting downstream. The prisoner and his friends followed them.

6.	The prisoner goaded or encouraged his friends by saying "That's him, kill him, shoot him". They used torches to search for them. The witness Basil, fearing for his life, dove into the water and swam to the opposite river bank where he surfaced and hid among some pitpit bushes. The deceased however did not do so and remained where he was in the canoe. Whilst in his hiding place, the witness Basil heard the prisoner tell the others "Sutim em" or 'shoot him'. He said the prisoner made these comments when their torchlight fell upon or shone on the deceased. He said that was when he saw Cliveson Ban pick up a hunting spear and spear the deceased in the left arm.

7.	Witness Basil saw the deceased fall into the river. The prisoner and his companions then dragged the deceased's body on the side of the canoe, using the long handle of the spear. They were able to drag or pull the body in the water because the spear was still embedded in the deceased's body.

8.	Witness Basil said he was about 7 metres away when he saw the spear strike the deceased. He said whilst he was watching them, the canoe pulled onto the river bank, where Wain Gai, the prisoner's companion, used an axe to strike the deceased on the back of his head. He then saw those in the prisoner's canoe use the blade or the horns of the paddle blade to strike the deceased several times on the head.

9.	He said he saw the prisoner and others attempt to remove the spear from the deceased's left arm, but could not, so they decided to remove only the long spear handle, leaving the metal prongs in the deceased's body. He then saw them push the deceased's body into the river and did not see the deceased resurface.

Aggravating factors

10.	The circumstances leading to the deceased's death and the weapons used demonstrates the callous, inhuman and barbaric manner in which the deceased was killed. Firstly, I have already described the weapon used in the attack and will not provide a further description, except to add that to those involved in the killing, the deceased to them was more an animal and they were the hunters. The aggravating factors as I saw them, were;

(i)	the deceased was chased and tracked like an animal;

(ii)	when he was eventually caught, he was speared with a weapon used only for large animal quarry;

(iii)	the spear was thrown with such force that it penetrated through the left arm to the other side then embedded itself and could not be removed;

(iv)	the prisoner aided in the hunt and eventual killing by chasing the deceased and urging or goading the persons who wielded the weapons that struck the victim;

(v)	the prisoner was always in the canoe when 'dragging' the deceased still attached to the spear, to the river bank;

(vi)	the prisoner was always in the canoe when the canoe pulled up to the river bank;

(vii)	the prisoner was always in the canoe when the deceased was struck on the head with an axe and later his body submerged or pushed into the depths of the river where it was not found or discovered until the next day.

Mitigating factors

11.	The prisoner expressed remorse, pointing out that he was the only provider for his family which includes his wife, 2 children and his brother's 6 children, which brother is also deceased. He has to care for all the children.

12.	This is also his first conviction and he does not have any prior convictions.

Analysis of evidence and the law

13.	I have discussed the law on aiding and abetting in my published reasons on Verdict so I need not repeat that. Although, this is the Sentence of the Court, I find I must continue to re-emphasise in the Sentence, the role played by the prisoner and how the law will interpret his actions. I start by saying that this case can also be distinguished from John Anis Pok v. The State (1983) SC 254 Supreme Court Decision of Kapi DCJ, Kaputin .J and Gajewicz .J dated 2nd June, 1983, where on an appeal against a life sentence conviction where the lower Court found the appellant guilty of wilful murder as an aider and abetter under s.7 of the Criminal Code, the Supreme Court said that the evidence in the trial Court fell short of proving or establishing that the appellant had met up with the principal offender after running from the dance place, that there was no evidence that the principal offender struck the deceased and whether it was before or after the appellant had met up with him. That if the appellant was present when the deceased was killed, what part did the appellant play in aiding and abetting and in what way did he encourage the principal offender. The Supreme Court found on the evidence that, the most the Trial Court could have concluded was that the appellant had seen the body lying down and that he was not sure if he was drunk or not. And whether or not this was a reasonable version to accept was left in the air by the State. That there was no evidence by the State on the position of the body on the ground, and that the possibility is that the appellant came upon the body after he was attacked. That there was no evidence that the appellant knew anything about the attack and that the State evidence at its best is that the appellant was seen running after 4 men. As to what the 4 men did is not clear and it was also not clear as to who these 4 men were. If John Peng was the principal offender, he was not identified as one of the 4 men seen running. The Supreme Court quashed the life sentence conviction and discharged the appellant. 

14.	This case, is completely the opposite in that the accused was identified and recognised as being the man who made the encouraging comments or who goaded and encouraged the other men in the canoe to attack the main witness and the deceased. The evidence is also that the prisoner remained with the group right throughout the chase, to the striking of the deceased, then to the actual pushing of the deceased's body into the water. This evidence is unchallenged and is aggravating indeed.

15.	On allocatus, the prisoner continued to deny that he did this wrong, showing his total contempt for human life. I make this comment because the evidence is overwhelming that he was at the scene of the crime. The evidence is also overwhelming that he was present and wilfully encouraged that killing. The use of words "sutim em, sutim em" and "that's him, kill him, shoot him" is, in my view, wilful encouragement and amounts to wilful encouragement. (See Porewa Wani v. The State [1979] PNGLR 593 (SC 170) Pritchard J., Wilson J. and Andrew J.).

16.	As I have found, the prisoner played an active role in the deceased's killing.

17.	Different types of wilful murder have been described as the worst type. (See Ure Hane vs. The State [1984] PNGLR 105). It is indeed difficult to distinguish between wilful murders because death is always a consequence. However, the general view is that wilful murder is homicide of the worst kind which is why it carries the death penalty. As to the degree or why it is considered to be the worst crime, Judges almost always refer to the circumstances surrounding the death. 

18.	The State submits that the only factors in the prisoner's favour are his lack of prior convictions and expressions of remorse. Mr Kupmain for the State, further submits that expressions of remorse from the prisoner are not genuine because there has not been any dispute settlement between the two parties and their respective villages

19.	I agree with those submissions because it is difficult to understand why a person would commit such an horrendous crime, and when found guilty by a Court, say that there is nobody to look after his children if he is incarcerated. Is the killing of another human being, in such horrendous circumstances as I have seen, such that the person who committed such an horrendous act, is capable of human feeling? I think not. These mitigating factors are of course, now rendered nugatory. In respect of this statement, I refer to what the Court said in Manu Kovi v. The State (2005) SC 789 at pg.15;

"Life imprisonment is suggested in contested or uncontested cases with special aggravating factors such as brutal or horrific killing of an innocent or harmless person in cold blood. The gravity of the offence is such that any mitigating factors are rendered nugatory."
 (my emphasis)

20.	The State submits that life imprisonment is the appropriate sentence because of the nature of the offence. Noting that the categories in Ure Hane v. The State [1984] PNGLR 105 are now outdated, I have had recourse to Manu Kovi v. The State (supra).

21.	The State submits that the deceased, a 17 year old, played no part in the fight and was only a bystander. He followed the witness to the water front when they were then set upon by the prisoner and others.

22.	He submits that the prisoner and others were in a group which meant that the deceased had no opportunity to escape because he was out on the water and after he was speared, he was dragged around like an animal in the water and finally killed. 

23.	Mr Yawip submits that a sentence between 14 to 25 years is appropriate. He asks that the Court exercise its discretion by imposing this term of years rather than the death penalty.

24.	In all, the circumstances of this case, being a brutal killing, in cold blood of a defenceless, innocent young man using dangerous and offensive weapons, renders the few mitigating circumstances, insignificant. Although, the evidence does not suggest pre-planning or premeditation leading to the killing, the circumstances of this case falls within the third category of Manu Kovi v. The State (supra). Therefore, the judgment of this Court is that the prisoner, Alwyn Wani, is sentenced to life imprisonment, in hard labour to be served at the Boram Correctional facility.

______________________________

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