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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO. 38 OF 2010
STATE
V
FAMUNDI BADI MOIBAMO (NO. 3)
Offender
Goroka: Ipang AJ
2011: 20 & 25 August
CRIMINAL LAW – Sentence – Criminal Code Act –s.299 (1) – Wilful murder – Sentencing principles – mitigating and aggravating factors – Sentencing guidelines in Manu Kovi v The State (2005) SC 789 applied.
CRIMINAL LAW – Prisoner's antecedent's – nil prior convictions – defector provocation in non-legal sense – Pre –sentence Report (PSR) and Means Assessment Report (MAR) taken in to consideration.
CRIMINAL LAW – Serious as it took place within the heart of Goroka – in full view of people walking or community and in broad day light. Goroka township has witnessed in the recent past- brutal killing and blood of innocent victims Goroka town is no battle field as such no blood should be spilled within its township. Goroka town is the modern commercial hub and gateway to Highlands Provinces with people from all walks of life present. A specific and general deterrence sentence must be imposed.
Cases Cited
Manu Kovi v The State (2005) SC789
Goli Golu v The State [1979] PNGLR 653
Avia Ahia v The State [1982] PNGLR 92
Ume v The State (2006) SC386
Counsel
Mrs. V. Mauta, & Ms. B.Gore, for the State
Mr. R. Kasito, for the Prisoner
26 August, 2011
ALLOCUTUS
"I thank you, Honour. I thank you for giving me time. I say sorry to God. I say sorry to the complainant. This incident should not come this way. My wife had affairs with four (4) men. I brought her to the village court. She did not turn up in court. She went out with another man. I saw this man with my own eyes at the main market so this incident happed.
Since a small boy, I faced no problem like this. I have never appeared in the village court, District Court and the Supreme Court. I am sorry. I paid compensation in the sum of K7250.00. Victim's relatives are at peace"
SUBMISSION BY DEFENCE COUNSEL
The Community leader William Kafare, Ray Kafare – SDA Pastor and Newton Kamuru WARD 3 llg Unggai Council President spoke favourably about the offender that his a humble person. That he never assaulted his wife prior to the offence. They said he is a cool and calm person who always minds his own business. The community leaders said the whole community was shocked when they heard about the incident. This is because the offender had not demonstrated aggressive behavior in the past. The community leaders on behalf of the community requested leniency for the offender. They further stated that the community had never experienced such offences for many years. The deceased brother Smith Pepeto confirmed deceased relatives have received K7, 250.00 compensation and have no additional demand.
SUBMISSION BY STATE
The brief facts of the much sought about case of Manu Kovi is as follows:
The appellant pleaded guilty to stabbing of his wife. The couple had one daughter and had been living apart for some time. The appellant met the deceased and they had an argument over their daughter. They then parted. The appellant went to a supermarket and purchased a small bush knife. He then boarded a PMV where the deceased was a passenger in that bus. The appellant sat next to her and spoke to her. When the bus reached the road junction, the appellant pulled out the bush knife, which was hidden under his clothes, and cut her repeatedly. The bus crew and passengers stopped the appellant from further attacking her. He surrendered himself and was taken into police custody. The deceased was rushed to the hospital but she died on the same day from loss of blood from multiple stab wounds. The medical report of Dr. Golpack shows multiple knife wounds on both sides of her head, on her left arm, elbow joints and wrist and on her back. One of the wounds at the back located at the tip of the right shoulder penetrated her right lungs causing it to collapse.
On appeal on excessiveness of sentence, the appellant stated that "the trial judge erred in not taking into account the fact that his wife was unfaithful to him when he was in prison. When he was released from prison, he took the matter to court and later forgave her. He says he tried hard to "uphold the dignity of our marriage through love and forgiveness" but she made life difficult for him. On the bus he tried to talk to her about why she sent away their small daughter to live with someone else but she did not respond. This "stimulated my anger and this has aggravated me to do what I shouldn't have done". He says the killing was "through emotional stress and passion.
The Supreme Court dismissed his appeal and up held the sentence of life imprisonment.
TABLE 1 SUPREME COURT
| Case/Date of Decision | Offences | Sentence | Particulars | Result |
| Goli Golu V The State Raine Dep CJ, Kearney J & Wilson J 1979 PNGLR 653 | Wilful Murder | Life imprisonment | Appellant had attended the Kwikila court house with members of his clan as a result of a riot involving the accused's clan and that
of the deceased. The appellant was not an accused in the riot case. The accused chased down and stabbed the deceased. Court stated that life imprisonment should be reserved for the most serious instances of this type of offence. Discussion of the effect of section 141 and 142 of the Corrective Institutions regulations 1959 on persons sentenced to life imprisonment. Appellant in his mid twenties. He was married with two children. He was well educated and was in employment. He had no prior convictions. Plea of not guilty (self defence and provocation ) | Appeal allowed and an effective sentence of 12 years and 6 months imposed. |
| Avia Ahi V The State Kidu CJ, Kearney Dep CJ, Greville Smith J, Andrew J & Kapi J 1982 PNGLR 92 | Wilful Murder | Life Imprisonment | The appellant was sentenced to life imprisonment for the payback killing. The deceased was charged with dangerous driving causing
the death of the appellant's husband. The deceased was attending a court review with the court trying his case when he was attacked
and killed. Discussion of the "worst case" and when life imprisonment is applicable for willful murder. Offender who was shown not likely to re-offend
should be given more leniency that those who are likely to re offend. Plea of guilty | Appeal dismissed |
| Manu Kovi v The State unreported judgment of the Supreme Court SCRA no: 51 of 2003 Injia DCJ. Lenalia and Lay JJ | Murder (Court considered tariff for all homicide cases) | Life imprisonment | The appellant was charged with the willful murder of the wife. The Supreme Court dismissed the appellant's appeal but set sentencing
principals for all homicide cases. Principal on each category for willful murder are:
Prior conviction for GBH involving an attack on his wife -18 months imp | Appeal dismissed NOTES ON EACH CATEGORY: 1."Ordinary case" – no weapons, little or no premeditation or pre-planning, minimum force used and absence of strong intent to kill; 2.Pre-planned vicious attacks weapons used and exhibits a strong desire to kill. 3.Killing types –brutal in cold blood innocent defenceless of harmless victims, victim young or old, dangerous or offensive weapons used accompanied by other serious offence, pre-planned or pre-meditated with strong desire to kill exhibited; and 4. Worst case. |
| Ume v The State (2006) SC386 Waigani: Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani | Wilful murder | Life imprisonment | The appellant was convicted for wilful murder and was given death penalty. On appeal, the court identified several errors in law. Furthermore the trial judge erred in finding that there were no mitigating factors when in fact there were relevant mitigating factors such as the appellant's previous good character, their first offender status, their Christian back ground, stable family back ground and their rural village upbringing. The death penalty was quashed and each appellant was sentenced to imprisonment for life. PLEA OF NOT GUILTY | Appeal allowed and sentence of death penalty substituted with life imprisonment. |
NATIONAL COURT
| Case/Date of Decision | Offences | Sentence | Particulars | Result |
| The State v Yapes Paege & Relya Tanda | Wilful murder | Life imprisonment | Appellant ambushed the deceased as he left his house to investigate a disturbance. There was evidence that the killing arise out of
a tribal dispute. Deceased cut with a bush knife. Discussion of applicant of the term "worst case" Discussion of the discretion under section 19 of the Criminal Code Act. Prosecutor made a submission against the death penalty. Plea of not guilty | No Appeal |
| Wilful murder | Death | Deceased was ambushed by the prisoner and a group of others. He was chopped on the head. The killing was a payback killing by the
prisoners's tribe upon the deceased's tribe. Discussion of the frequency of payback and tribal killings. Maximum penalty should only be imposed from the worst case HH decided that this was not a payback killing as the deceased came from the same tribe as the prisoner. This was a killing of a defenceless man in cold man in "cold blood" | Appeal has been lodged but yet to be heard. | |
| Wilful murder | Death | The deceased was a policeman who was part of an escort of a politician in the Southern Highlands Province. There were 4 vehicles in
the convoy, including the police vehicle. The escort team came across a crowd near a village. The crowd began to attack the convoy,
the police vehicle left the convoy. The police vehicle had its tyres shot out in the gun battle. The deceased and the other police
left the vehicles on foot for safety. The deceased was captured by villages and taken to the prisoner. The deceased was led by the
prisoner and the villages to a cliff. The prisoner shot the deceased in the head with one shot after being allowed to say his last
prayers. The prisoner said he was sorry for what he did when asked on the allocutus. He said "a" policeman had shot his uncle, who had raised him many years previously. HH said that "payback" cannot extend these situations as a factor of "de-fecto provocation". Review of the cases categorized as "worst case" HH said this was an unwarranted killing of a policeman and falls into the "worst case" category. Plea of guilty | Appeal has been lodged but yet to be heard. | |
| Wilful murder | Sentence to 20 years imprisonment | The prisoners were mourning the death of their wife and mother. Whilst they were mourning the deceased arrived. The prisoner had previously
accused the deceased as being involved in the death of the wife and mother through sorcery. They attacked the deceased and he died
as a result of injuries sustained. They dumped the body in the rubbish dump. The State did not urge the death penalty. The courts said it is difficult to place the "worst cases" in categories. HH considered the educational background and influence of the Government upon the life of the prisoner in determining whether the death penalty should be imposed. In this case the husband was a teacher ad therefore he and his sons had been exposed to education. However the belief in sorcery was prevalent in the community from where the prisoners came... Pleas of not guilty | |
| | FACTORS | |
| NO | MITIGATING | AGGRAVATING |
| 1 | First time offender | Use of offensive/dangerous weapons. |
| 2 | Single blow & he acted alone. | Stabbed deceased in front of people & in town |
| 3 | Express remorse & paid K7250.00 compensation. | |
| 5 | De-factor provocation in non legal sense. | |
____________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused
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