N5076

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 311 OF 2012

THE STATE

V

DAVID BANI
(NO.2)

Kokopo: Lenalia, J
2012: 19th, 20th, 21st, 28th Nov, 10th 24th December
2012: 5th February

CRIMINAL LAW – Charge – Willful Murder – Sentence after a finding of guilty to one count of willful murder – Criminal Code s.299. 

CRIMINAL LAW – Sentence principles – Killing on provocation in the non-legal sense – Appropriate penalty – Considerations on what should be the appropriate penalty. 

CRIMINAL LAW – Appropriate penalty – Term of years considered – Sentence accordingly. 

Cases cited.

Goli Golu-v-The State [1979] PNGLR 653, 
Avia Aihi (No.3)-v-The State [1982] PNGLR 92
 Ure Hane-v-The State [1984] PNGLR 105
Manu Kovi-v-The State (2005) SC 789
Steven Loke Ume & Ors-v-The State (2006) SC836 
The State-v-Arua Maraga Hariki (2003) N2332 
The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381
Alois Peter Bore Kovei-v-The State (2001)

Counsel

Mrs. S. Cherake, for State
Mr. G. Kerker, for Accused

5th February, 2013.

1. 	LENALIA, J: In this case, the prisoner, David Bani of Nordup village, Rabaul District, East New Britain Province was found guilty on 10th of December 2012 on a charge of willful murder contrary to section 299(1) of the Criminal Code. The evidence upon which the prisoner was found guilty came from three witnesses who were on the scene minutes after the killing took place at Nordup beach front on the evening of 14th July 2011. 

2.	Subsection (2) of the above Section fixes the maximum penalty at death. The whole Section states:

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

2.	The prisoner was together with four other boys on the night of the killing. Somehow those boys have not been arrested. But the Court found that, though the other boys were there, why would they execute the death penalty on the man who had no grudges with them? As the Court found, there was a high possibility that the prisoner cut the victim's left side of the abdomen before Lucy, Aloisia and Gabriel got onto the scene. 

3.	Those witnesses, Lucy Hubert, Aloisia Warium and Gabriel Hubert were on the scene minutes after they heard distress calls distinctively from the deceased when the assault began. According to the Court's findings, the motive for killing was because the deceased was having an incestuous love affair with the accused mother. This resulted in a child being born to the mother of the accused. Evidence established that the deceased and the prisoner are brothers that are their fathers are blood brothers. So that the accused and the deceased are cousin brothers. 

4.	The prosecution evidence established that, on the night of the above date, the prisoner and another four boys were waiting for the victim at Nordup beach-front. While they were waiting the accused informed those boys whose names appear on the evidence as Raymond Kumaina, Warda Karik, Raphael Purpur and Ken Minonot not to do anything to the victim Hubert Valavala, but that he had a problem with him. 

5.	The Court found that as they were waiting, the victim came ashore from his fishing trip via his canoe. On his arrival, the prisoner started to assault the victim with a stick and as the Court found, there was a chance for him to have cut the victim on the left side of his abdomen. Because the prisoner was together with other boys, he was found guilty of committing the offence himself pursuant to s.7 of the Criminal Code. 

 Address on Allocutus

6.	On his last say, the prisoner maintained his position that, he never cut the victim. He asked for leniency saying this is his first time to appear in this Court as he never been to court before. He said sorry for what he did to the victim. He said sorry to the Lord. He said he comes from a poor family. He is married with a three months old baby and his parents are not employed. 

Defence address on Sentence

7.	On his address on sentence, Mr. Kerker for the prisoner directed the Court's attention to the issue of what should be the appropriate penalty that this Court should impose on the prisoner. Counsel submitted that because there was provocation on the part of the prisoner, this case should be regarded as not the worse type case as there was provocation in the non-legal sense.

8.	Mr. Kerker referred to wilful murder cases where both the Supreme Court and the National Court have said, or set principles for guiding Judges in the National Court on sentencing offenders on wilful murder cases. He asked the Court to consider the following mitigations:

•	The prisoner's expression of remorse.
•	He is the first time offender.
•	There was provocation in the non legal sense involved because, the victim created the problem when he committed offence of having an affair with the accused's mother which is not normal in custom.
•	The family members view of what should be the appropriate penalty.
•	He asked the court to consider the prisoner and the victim were first cousins. 
•	be friended the accused mother and impregnated her causing her to give birth to a baby girl named Petra.

9.	Counsel asked the court to consider the sentencing principles set in cases such as Goli Golu-v-The State [1979] PNGLR 653, Avia Aihi (No.3)-v-The State [1982] PNGLR 92 and Ure Hane-v-The State [1984] PNGLR 105.

Prosecution address in Reply

10.	Mr. Rangan stood in for Mrs. Cherake of counsel representing the State who prosecuted the case, argued in his submission that the instant case is one of those worst type cases encountered in practice and the Court has two issues to decide. He put them as:

1.	Is this a worst type case that will attract the maximum penalty of death. 
2.	If not should the court consider life imprisonment or a term of lesser penalty.

11.	Counsel asked the Court to consider the cases which he referred to including the Supreme Court case of Alois Peter Bore Kovei-v-The State (2001) SC678 and the comments made by the Supreme Court in that case. He submitted that this case should fall into the 2nd category of the tariffs of sentences suggested in the Manu Kovi-v-The State (2005) SC 789. He referred the court to the set of photos that where taken at the hospital after the deceased was taken there. Counsel said this case can be considered as one of those worst cases of wilful murder as the wound inflicted on the victim could have been intentionally inflicted for the motive established in the evidence. 

Application of Law

12.	The issue really is what should be the appropriate penalty that should be imposed. Section 299 (2) of the Criminal Code sets out the maximum penalty for the offence of wilful murder. That penalty is "death." In the circumstances of this case, this Court is of the view that, the case does not warrant imposition of the maximum penalty. I come to the conclusion that because the prisoner was provoked in the non-legal sense, he should be sentenced to a term of years. 

13.	Before the prisoner is sentenced, I refer to some cases to compare the facts and evidence with the current case and what should be the appropriate penalty. From the outset of this judgment, it is the Court's view that, the killing of the deceased on this case was serious and one of those cases that can be regarded as worse type case but as I have said, the prisoner was provoked in the non-legal sense. 

14.	The principle for sentencing in wilful murder cases were enunciated in cases such as Goli Golu-v-The State [1979] PNGLR, 653, Avia Aihi (No.3) -v- The State [1982] PNGLR. 92 and Ure Hane -v- The State [1984] PNGLR 105. The principle enunciated in the above case is that, the maximum penalty should be reserved for the most serious offences under consideration. This means that, the maximum penalty should only be imposed in those cases where they are categorized to be the "worse type case" encountered in practice.

15.	Then in Manu Kovi-v-The State (2005) SC 789, the Supreme Court set some guidelines to guide Judges on sentencing offenders for the offence of wilful murder. That case establishes that where a crime of wilful murder is classified as a 'worst type' case the death penalty can be imposed. In the case of Steven Loke Ume & Ors-v-The State (supra), the Supreme Court comprising of Kapi CJ, Injia, DCJ, Los, Hinchliffe & Davani JJ set out eight (8) considerations where the maximum penalty can be imposed on wilful murder cases. In the above case the Supreme Court, without being exhaustive, suggested that the death penalty may be imposed in the following types of cases:

"1. The killing of a child, a young or old person, or a person under some disability needing protection.

 2. The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

 3. Killing of a leader in government or the community, for political reasons.

 4. Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

 5. Killing for hire.

 6. Killing of two or more persons in the single act or series of acts.

 7. Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

 8. The prisoner has prior conviction(s) for murder offences."

16.	The death penalty is not mandatory, but is the maximum penalty that can be imposed. The Court has considerable discretion whether or not to impose the maximum penalty when reading s.229 (2) in conjunction with s.19 (1)(aa) of the Code: see Steven Loke Ume & Ors-v-The State (2006) SC836 (Kapi CJ, Injia, DCJ, Los, Hinchliffe & Davani JJ). 

17.	Earlier on in the case of Ure Hane -v- The State [1984] PNGLR 105, a case in the Supreme Court Bredmeyer, J; set out eight (8) categories of serious wilful murder which can be categorized as worst type killings. They include:

1.	A wilful murder committed in the course of committing thefts, robbery, break and enter or rape,
2.	A wilful murder of a policeman or prison officer acting in  execution of their duties, 
3.	Wilful murder done in course of resisting arrest or  escape from lawful custody,
4.	Wilful murder of person in police or court custody,
5.	A payback killing of completely innocent person,
6.	A second or third murder,
7.	A wilful murder committed by a person having a long record of violence, wilful murder of VIPs.
8.	A wilful murder of the Governor General, Prime Minister, the Leaders of the Opposition, the Speaker of the National Parliament, the Chief Justice and other VIPs.

18.	In the circumstances of this case, I treat and accept the events leading up to the commission of the offence concerning the extra marital affair of the prisoner's mother and the deceased as described by the prisoner and his counsel as an extenuating circumstance. This view is consistent with the definition of the phrase "extenuating circumstances" ascribed to it by the Supreme Court empanelled by five judges in Steven Loke Ume-v-The State (2006) SC836 where it stated at paragraph 42 as follows:

"As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent the offender's participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did." 

19.	In homicide cases, National Court Judges often say that, the penalty to be imposed ought to fit the nature of the crime committed. The man Hubert Valavala you murdered will not recover his life after whatever penalty that will be imposed on you after this address. The set of photos that were exhibited on trial of this case, makes the Court thinks that the cut that you inflicted on Hubert was a determinate blow. 

20.	I say determinate because the cut on the left side of the abdomen was an open cut exposing intestines. Homicide killing is very common and punishments imposed for such crimes ought to be proportionate to the degree and nature of the crime committed.

21.	I cite two cases where the death penalty has been imposed. In The State-v-Arua Maraga Hariki (2003) N2332, Salika, J; (as he then was) imposed the death penalty on an offender who killed two young men with whom he had been drinking with during the night the offences were committed. The prisoner strangled the two deceased by their necks. 

22.	In this Province in The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381 a multiple wilful murder case of eight (8) victims who were killed on the sea between Duke of York islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province. 

23.	In that case there were grudges between the first accused with the owners of the boat Palex in regard to an incident which occurred back home where one of his relative was severely injured. Because of that, he conspired with other co-accused who set up a plan to ambush passengers of the boat called "Palex". When that boat sailed to the point at Makada in Duke of York Islands, the two boats carrying the offenders waited and eventually ambushed the boat and all its eight passengers were shot dead. All the six accused together with Kenny Wesley their co-accused were sentenced to death by hanging until they die. 

24.	In The State-v-Wilson Okore, (6.2.2009) CR No.584 of 2006, Unreported & Unnumbered Judgment, the Judge imposed a term of 50 years for the offence of wilful murder. It was a case in Lae where the offender pleaded guilty to the murder of the deceased who was suspected of practicing evil sorcery upon his aunt which caused her to suffer drowsiness and severe headaches. The deceased and the prisoner's aunt were colleagues. The prisoner ambushed the deceased near his house early in the evening while it was raining heavily when he went out of his house to wash the prisoner cut him with a bush-knife. 

25.	The maximum penalty is not automatic: Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State (supra). The Court may exercise its sentencing discretion under Section 19 of the Criminal Code however this discretion is not available where the law expressly provides otherwise as I have alluded to earlier. 

26.	The death penalty is imposed where it is appropriate to impose according to the facts and circumstances of each case. Where an offender has been through a trial as envisage by the right to trial and found guilty, of wilful murder it does not mean or it may not attract the death penalty. The Court has a wide discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, among others, aggravating and mitigating factors and extenuating circumstances. 

27.	On the instant case, I have considered mitigations and aggravating factors put before this Court first by the prisoner. I have considered all submissions by the defence counsel and that by the State Prosecutor prosecuting this case.

28.	The basic principle that the sanctity and value of a human life is more precious and valuable than wealth must be given prominence. Once a life has been lost, it is forever lost. Neither wealth, business nor money paid in the form of compensation or even any remorse could restore or revive a life that has been lost. I consider the fact that though the deceased would been partially responsible, he was never brought to any court of law to prove his case. 

29.	If there were any grudges as you said in your evidence and allocutus between you and the victim why not settle amicably rather than taking the law into your own hands. People must know we have a system in place for dispute resolutions. 

30.	The life of the victim in this case has now been lost for good. He was entitled to the protection of the law envisaged by s.35 of the Constitution. Neither wealth nor anything of this world paid in compensation or even any remorse would assist to restore or revive or resurrect a life that has been lost. Once it is lost, it is lost forever. That is why the parliament thought that the penalty for the crime of wilful murder should be death. 

31.	Having considered all mitigations and aggravating circumstances of this case and the sentencing tariff set by the Supreme Court in Manu Kovi-v-The State (supra), your case would fall into the second or third category in the above case.

32.	Considering counsels' submissions on sentence and what you have said in your allocutus, I consider that this case does not warrant imposition of the death penalty. I therefore consider that the appropriate penalty should be 40 years imprisonment. 

33.	The prisoner is sentenced to a term of 40 years imprisonment in hard labour. The pre-trial custody period shall be deducted from this sentence and he shall serve the balance.

______________________________________________________________
The Public Prosecutor:	Lawyer for the State
The Public Solicitor:	Lawyer for the Prisoner