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State v Kerimiba [2012] PGNC 323; N5173 (28 November 2012)

N5173

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1442 OF 2010

THE STATE

V

JUSTUS T. KERIMIBA

Popondetta: Toliken, AJ
2012: 1st October
28th November

CRIMINAL LAW – Sentence – Willful murder – Prisoner decapitated deceased with a single knife blow to neck – Unprovoked and unexplained killing - Plea of guilty – Mitigating and aggravating factors considered – Aggravating factors out-weigh mitigating factors – Sentencing tariffs considered - Sentence of 30 years imposed - Criminal Code Ch. 262, s 299 .

Cases Cited:

Goli Golu –v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No.3)[1982] PNGLR 92.
The State –v- Ben Simakot Simbu (2004) N2546
Manu Kovi v The State (2005) SC 789
Steven Loke Ume, Charles Kaona and Greg Kavoa v The State (2006) SC836
The State-v-Sedoki Lota and ANOR (2007) N3183
Thress Kumbamong v. The State (2008) SC 1017
The State –v- Mamanane Guri (No.2) (2009) N3771
The State –v- Isak Wapsi (2009) N3695
The State –v- Peter Wirundi (2010) N3994
The State-v- Dilu Kimam (2011) N4323

Counsel:

D. Kuvi, for the State
L. Mamu, for the Prisoner

JUDGMENT ON SENTENCE

28th November, 2012

1. TOLIKEN AJ: Justus Kerimba, on the 18th of October 2012, the State indicted you for one count of willful murder. The charge alleged that:

"Justus Kerimba of Binduta Village, Popondetta, Oro Province stands charged, that he on 2nd day of November 2009, at Binduta Village, Popondetta, Oro Province in Papua New Guinea, willfully murdered one ERIC ARENIAS."

2. This is an offence under S.229 of the Criminal Code Act.

FACTS

3. The brief facts are as follows:

"On 2nd November 2009, between 8.00 a.m. – 9.00 a.m., you were at your home village at Binduta, Popondetta, Oro Province. You went to the deceased's house where you picked up a piece of firewood and walked on the deceased's cocoa block where he was working. You met the deceased at the cocoa block. You greeted the deceased and the two of you exchanged pleasantries. The deceased stopped working and you two conversed for a while.

The deceased then wanted to light his smoke so he put his grass knife down. And as he was lighting his smoke, you immediately picked up the grass knife and landed one single blow to his neck with the grass knife, completely severing it from the body. The deceased died immediately. You then got the deceased's head and hid it on top of a hybrid coconut tree. You were later arrested and charged for this offence.

4. The State alleged that when you chopped off the deceased's neck, you had intended to cause his death.

5. You pleaded guilty to the charge. I entered a provisional guilty plea on your behalf and only confirmed it after I was satisfied from the committal depositions that the evidence supported your plea. I then convicted you.
   

ANTECEDENTS

6. You are 35 years old. You come from Binduta Village, Popondetta, Oro Province where you have always resided. You are not married and were baptized into the Anglican faith. You have no prior convictions.
   

ALLOCUTUS

7. On allocutus this is what you told the Court:
   

"I don't have anything to say. I have committed the offence. I am now in Court and the Court will deal with me".

SUBMISSIONS

Defense Counsel

8. You lawyer submitted on your behalf that the maximum penalty for willful murder is death. However, he said that this is reserved for the worst category of offences.
   
9. He referred the Court to the case of Manu Kovi v The State (2005) SC 789 which set sentencing guidelines and tariffs for homicide offences. Counsel submitted that your case falls within Category 2 of the Manu Kovi tariffs, attracting a sentence between 20 -30 years.
   
10. Counsel conceded the following aggravating factors against you. You used a dangerous weapon and had a very strong desire to kill. A life had also been lost. He, however, also submitted that there are factors operating in your favour. These are; you pleaded guilty to the charge, are a first time offender, illiterate and had shown remorse. He then left the sentence for Court to determine in accordance with Manu Kovi guidelines.
    

The State

11. Counsel for the State acknowledged your lawyer's submissions on the maximum penalty and that the imposition of the maximum sentence is reserved for worst offences. (Goli Golu –v- The State [1979] PNGLR 653; Avia Aihi (No. 3) [1982] PNGLR 92. However, the Court is vested with overriding discretion under S.19 - Criminal Code Act Ch.2626, so he submitted.
    
12. The State made a very strong submission on sentence citing strong aggravating factors against you. These are:
    
    • The use of a dangerous weapon
    • The deceased was harmless, innocent and defenseless
    • A life was lost which can never be restored with any amount of compensation or expression of remorse.
    • The offence is prevalent in the country with an increase of homicides recently in Oro as evident from reported cases
    • This was heinous crime – death was brutal and cold blooded
    • There was a strong desire to kill as evidenced from decapitation of the deceased.
      
13. Counsel also acknowledged sentencing guidelines set by Manu Kovi (supra) but said that the circumstances of your case puts it under Category 3 – life imprisonment. Counsel cited comparative cases in point which I will discuss further down in this judgment. He therefore called for a sentence between 35 years and life imprisonment.
    

THE LAW

14. The offence of willful murder is provided by Section 299 of the Criminal Code Act Ch. 262. It says:
    

"299. Wilful Murder

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of willful murder.

(2) A person who commits willful murder shall be liable to be sentenced to death.

15. The Court, however, has an unfettered discretion under S.19 of the Code to impose life imprisonment instead of a shorter term of years.
    
16. Willful murder is the most serious of homicide offences and is one of only a very few offences, (e.g. treason, privacy at high seas or attempt thereof) that carry the death penalty.
    
17. The penalty is reflective of society's value for the sanctity of life and that nobody should take the life of another with impunity. Sanctity of life is universally held and the taking of life has and still at different times, places and culture attracted the penalty of death as direct retribution (retributive justice), the ultimate form of which is that which we often referred to as "jus taliones or "jungle justice" or as expressed in the oft quoted biblical text "Life for life, eye for eye, tooth for tooth". Fortunately retribution for unlawful killings is no longer executed summarily as was done in the past.
    
18. In a democratic society where the rule of law prevails this is now done through the Judicial System. It is left to the courts to decide guilt and the appropriate penalty based on the law and the circumstances of each case and comparing them with similar cases that have been decided by the courts. (Judicial Precedence)
    

COMPARATIVE SENTENCES

19. Let me now briefly consider a few cases to see what the sentencing trend for willful murder cases has been.
    
20. In The State –v- Peter Wirundi (2010) N3994, the prisoner pleaded guilty to one count of willful murder. He killed his second wife whom he suspected of having affairs. He inflicted multiple wounds on her. The deceased died of massive blood loss. The prisoner was a first time offender. David J. sentenced the prisoner to 30 years imprisonment with hard labour.
    
21. In The State –v- Mamanane Guri (No.2) (2009) N3771, the prisoner was convicted after trial for the willful murder of his brother. He speared his brother on the chest with a "spear knife" during an argument over use of his canoe. The court took into account that there was a deliberate intention to kill and that the offence was prevalent. Even though the prisoner was unsophisticated the court viewed that the aggravating factors of the offence outweighed the mitigating factors and that there was need for a deterrent sentence. The prisoner was sentenced to 30 years imprisonment.
    
22. In The State –v- Isak Wapsi (2009) N3695 the prisoner pleaded guilty to willfully murdering the deceased whom he believed to be a sorcerer. He approached the deceased in his cocoa fermentry. Without any warning or provocation he proceeded to cut the deceased's legs with a bush knife, severing the right leg and inflicting significant damage to the left leg. The held the following mitigating factors in the prisoner's favour; plea of guilty, he was a first time offender, had a genuine belief in sorcery, acted alone, co-operated with police and relatively unsophisticated. There, however, were aggravating factors. These were; this was a vicious and barbaric killing, the prisoner showed very little remorse, displayed a very strong desire to kill, he did not reconcile with the deceased's relatives or pay compensation. He was sentenced to 25 years imprisonment.
    
23. In The State-v- Dilu Kimam (2011) N4323 the prisoner willfully killed his second wife. He inflicted multiple injuries to the deceased including piercing her lungs and causing damage to her brain. He was convicted after trial. He was a first time offender, had paid compensation but did not show any remorse. The court considered the prevalence of the offence. It considered that the case fell under Category 2 of Manu Kovi and sentenced the prisoner to 20 years imprisonment.
    
24. Counsel for the State also referred all to Charles Loke Ume & Ors (2006) SC 836, The State –v- Ben Simakot Simbu (2004) N2546 and The State-v-Sedoki Lota and Anor (2007) N3183. These cases all attracted the death penalty.
    
25. In Manu Kovi –v-The State (supra) the Supreme Court set sentencing guidelines for willful murder, murder and manslaughter. I set these out below.
    

26. Manu Kovi has been religiously followed by the court over the years. However, the Supreme Court in Thress Kumbamong v. The State (2008) SC 1017 (Salika DCJ., Kandakasi and Yagi JJ.) held that the trial court should not feel bound to apply the tariffs set by Manu Kovi. It held that the discretion under S.19 of Code is unfettered and can only be fettered by Parliament.
    
27. Be that as it may, the circumstances and factors outlined in Manu Kovi are very much useful and relevant to assessing and determining starting points and head sentences, in each particular case. It will be up to the sentencing court, in the exercising of its discretion, to fix the actual sentence within the maximum prescribed penalty.
    

YOUR CASE

28. Now turning back to your case. Firstly I find the following mitigating factors in your favour; you pleaded guilty to the charge, are a first time offender, illiterate and relatively unsophisticated.
    
29. On the other hand you displayed a strong intention to kill, there was some pre-planning on your part, this was a brutal, vicious and cold blooded murder, you used a dangerous weapon, you did not show any remorse at all and you have not reconciled or pay any compensation to the deceased's relatives. Furthermore, you attacked an unsuspecting, innocent, harmless and defenseless man and there is no explanation whatsoever, as to the reason for the killing. This offence is now very prevalent. These are aggravating factors against you.
    
30. Justus Kerimba, I view the circumstances of your case as very serious indeed. On the date of the incident, the deceased was busy going around his business when you approached him at his cocoa block. He had no reason to suspect anything or that you would attack him because as the brief facts show you were very civil to him.
    
31. But then all of a sudden, you grabbed his grass knife when he put it down to light his smoke and you viciously and brutally cut him on the neck. It is obviously that you used such substantial force because you completely decapitated the deceased. You therefore had a very strong desire or intention to kill him.
    
32. Another important and disturbing aspect of your case is that the material in the committal file which I am entitled to refer to, shows that on 1st November 2009, a day before the incident in question, you had gone to the Village Chief's house, where you picked up his knife and said to him "gutpela grass knife, mi laik katim neck blong wanpela man, na mi laik kaikai" It is therefore, open for me to infer that there was also some pre-planning on your part.
    
33. Now, this is a most brutal, barbaric cold blooded murder. It was also vicious. And what puzzles me most in this matter is that there is absolutely no explanation from you why you brutally killed the deceased. You have not shown any remorse at all and of course you have not made any attempt nor have you made reparations to the deceased's relatives.
    
34. The circumstances under which you committed this offence shows very clearly that you have no respect for the sanctity of life - something that God himself had given to each and every one of us and which our Constitution honourably guarantees as a fundamental right.
    
35. The circumstances of your case fall in between the Category 2 and Category 3 because it displays factors from both Categories. I find your case to be almost similar to the case of The State –v- Isak Wapsi (supra) except that in Isak Wapsi, the prisoner acted under a genuine belief that the deceased was a sorceress. Other factors in that case are similar to yours, e.g. you both displayed strong desire to kill, you both viciously and brutally attacked your victims, no reconciliation or compensation, you were both relatively unsophisticated. Should I therefore, impose a sentence similar to Isak Wapsi?
    
36. I do not think so, because the few mitigating factors that you have in your favour are rendered almost insignificant by your aggravating factors. An appropriate sentence I think should be in the range of the sentence in The State –v- Peter Wirundi (supra). That is 30 years imprisonment.
    
37. Such a sentence should serve as a deterrent to you and to the general public here in the Oro Province where we have recently witnessed a spur of very public murders in the very heart of Popondetta town. There is too much violence in society generally. There is too much unnecessary and willful taking of precious human life. A sentence in the range suggested here should therefore, among other things, exact respect for the sanctity of life and respect for the law.
    
38. The brutal, barbaric and vicious manner in which you committed this crime, coupled with the fact that there was absolutely no explanation for it, leads me to conclude that you are somebody who must be removed and kept away from society for a sufficiently long period of time. You fall in that category of people alluded to by the Supreme Court in Thress Kumbamong where it said that the courts should differentiate between those people who should be separated from society and those who must be undergo correction outside. You fall in the former category.
    
39. Therefore, I feel that I will be failing society, but particularly the people in your community, if I were not to incarcerate you for a sufficiently long period of time so that they can feel safe, knowing that they will not be set upon and killed unexpectedly like you did to the deceased in this case.
    
40. I, therefore, sentence you to 30 years imprisonment. You have to date been in custody for 3 years and 10 days. This will be deducted from the sentence you will therefore serve 26 years and 20 days.
    
41. None of the resultant sentence will be suspended.
    

Orders accordingly
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner