N5754

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NOS. 939, 940 & 941 OF 2013

THE STATE

V

GENSIS MAI, JAMES MAI & STEVEN MAI

Kokopo: Lenalia, J.
2014: 4th, 11th, 12th, 16th, June & 7th, 17th July & 15th August.

CRIMINAL LAW – Wilful Murder – Sentence after change of pleas from not guilty to guilty after the first witness had been called – Criminal Code Section 299.

CRIMINAL LAW – Wilful Murder – Three accused pleaded not guilty – Trial commenced – First witness called – All accused consented with their lawyer to change their not guilty pleas to guilty – No objection by the State Prosecutor – Three accused re- arraigned – Pleas of guilty entered to each and severally – Sentence.

CRIMINAL LAW – Sentencing tariffs – Deterrent sentences called for - Maximum penalty reserved for the type cases – Each wilful murder case is determined on its own merits – Court's consideration of aggravating factors and extenuating circumstances – On the current case, special aggravating circumstances far outweigh mitigating circumstances – Sentence of 50 years imposed.
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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
Ombusu-v-The State [1996] PNGLR. 335
Manu Kovi-v-The State (2005) SC 789
State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997
Steven Loke Ume & Ors-vv-The State (2006) SC836
The State-v-Arua Maraga Hariki (2003) N2332
 The State-v-Ben Simakot Simbu (N0.2) (2004) N2548
The State-v-Mark Poroli (2004) N2655
The State-v-Gregory Kiapkot & 4 Others (2012) N4381
The State-v-Kenny Wesley (2012) Unreported Judgment Cr. No 293 of 2010
The State-v-Seth Ujan Talil (2010) N4159
The State-v-Peter Gilgil Angara, CR No.1680 of 2006, Unreported & 
Tony Imunu Api-v-The State (29.08.01) SC684

Counsel:

Mr. L. Rangan, for the State
Mr. P. Yange, for the two Accused

15th August, 2014

1. LENALIA, J: The three brothers who are co-accused on this case appeared before this court on 12th of June, this year and the State Prosecutor presented an indictment charging them with one count of willful murder pursuant to s.299 of the Criminal Code. The offence was committed on 6th May 2013 at Open Bay Timbers log pond. 

2. After arraignment, all the three accused pleaded not guilty. The trial commenced by the prosecution tendering a lot of exhibits numbering from "1" – "11". Such documents included the three records of interviews had with the three accused. The trial was adjourned to call the witnesses and it was adjourned 16th of that month, when the first witness Lydia Patrick was called as the first witness. Lydia is the wife of late Patrick Leo Alois now deceased. 

3. The court adjourned for lunch and when it resumed at 1.30 pm, Mr. Yange announced that, the three accused had changed their minds and they wanted to change their not guilty pleas to guilty. Mr. Rangan confirmed such situation and said, counsels had discussed the matter and asked the court to re-arraign the three accused. When the three accused were re-arraigned, they all entered guilty pleas. The court entered a provisional guilty plea and after the facts were tendered, the court read the facts and the records of interviews, and when satisfied about their guilty pleas, I then confirmed their guilty pleas and convicted them on the charge of willful murder.

Brief Facts

4. The facts to which the three accused pleaded guilty to are that, on 6th May 2013 at the Open Bay Timber premises, East New Britain Province, prior to the time they committed the crime, the three accused heard the news about one of their relatives had died and they were supposed to have heard people mentioned Patrick Alois's name. That death took place on the early hours of that day. Then about between about 5 am and 6 am, when the three prisoners heard about the news, they rushed down to the company log pond to see their death relative. 

5. Upon arrival at the log pond, they found relatives mourning the death of their one-tok. The facts show that without properly ascertaining facts as to how the death of their relative occurred, they stormed into the deceased house which house was located next to where the relatives were mourning their death relative, the three charged towards Patrick and started to attack him by using their bush knives to repeatedly chop up the deceased. They each took turns to cut the victim all over his body.

6. Learning about the attack, the management arranged for the company boat to take the victim to the nearby health center. After the deceased was seated in the boat, they continued to attack him to the stage where, he got so weak and fell into the sea. He had to be lifted up into the boat and they rushed him to the nearby health centre, but he died on the same date. The medical report reveals that, the victim suffered multiple bush knives wounds on his body and over his head. He also suffered fracture on the skull and the doctor concluded that, the cause of death was "cerebral haemorrhage". 

Addresses on Allocutus

Genesis Mai

7. On his last say, Genesis re-stated the facts of what occurred in the morning of the fateful day and tried to raise a defence or justify the reasons for him and his two brothers killing the deceased. He said, the reason they killed the victim was because, when the three of them tried to find out why or who had killed their brother, the victim is supposed to have said something that provoked them and they did what they did. He said, this is his first time to be in court and he asked for mercy. 

James Mai 

8. James Mai said, he is sorry for what he did to the victim. He acknowledged breaking the law and committed the serious crime of willful murder. He said sorry to the victim's family and relatives. He said, the trouble was not planned but it happened that the three of them killed the deceased. He begged for mercy and asked if the court can consider leniency. 

Steven Mai

9. On his case, the prisoner said, on the morning of the date they committed the killing, he was asleep and someone woke him up and told him the new that the victim of this case had killed Nabak (their wantok). He then proceeded to where the body of Nabak was and after talking, they were returning when he went to Patrick Alois' house and asked who killed Nabak. 

10. A fight then broke out and that was how they killed the deceased of this case. This prisoner revealed that the killing of this case was planned by somebody and he and his two brothers executed such plan. He said sorry for what he did and asked for leniency as he had never been to court previously. He asked the court to consider, he has been in custody since he and the other two others were arrested.

Addresses on Sentence by Counsel

11. Mr.Yange of counsel for the three prisoners submitted that the court should consider the prisoner's guilty pleas, their expression of remorse and asked the court to consider the tariffs of sentencing guidelines set out in Manu Kovi v The State (2005) SC789. Counsel submitted that, the court should consider the pre-sentence report which suggests that the killing on the instant case was a payback killing. Counsel acknowledged the fact that this case involved a serious killing and the court should sentence the offenders to appropriate terms of imprisonment but that the case does not warrant imposition of the death penalty.

12. For the State, Mr. Rangan made submission on the seriousness of the killing of an unarmed victim. He raised the issue of the three prisoners taking the law into their own hands rather than taking the matter into the police but they decided to end the life of Alois. Counsel submitted that his was a vicious killing and the three prisoners' case would fall on the highest category of the sentencing tariff enunciated by various Supreme Court decisions Manu Kovi v The State (supra). Counsel referred to a few National Court cases including The State v Gregory Kiapkot & 4 Others (2012) N4381. 

Application of Law 

13. The maximum penalty for the offence of wilful murder if death. I quote s.299 (1) and (2) of the Criminal Code. 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 wilful murder.
 
(2)	 A person who commits wilful murder shall be liable to be sentenced to death."

14. The principle of sentencing in wilful murder cases set by the Supreme Court cases of 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 and Manu Kovi v The State (2005) SC 789 is 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. In Manu Kovi v The State (supra) the Supreme Court reviewed the guidelines set in previous cases and set some guidelines to guide Judges on sentencing offenders for the crime of wilful murder and other homicide cases. That case establishes that where a crime of wilful murder is classified as a 'worst type' case the death penalty can be imposed.

16. The maximum penalty is not automatic: Steven Loke Ume & Ors-vv-The State (2006) SC836. According to the decision of appeal by the Suprme Court a sentencing Judge may exercise its sentencing discretion pursuant to s.19 of the Criminal Code but such discretion may not be available where the law expressly provides otherwise. 

17. 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 it may 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. 

18. Let me now refer to a number of cases in which the Supreme Court consisting of various benches which have set out guidelines for the crime of willful murder. First, I refer to 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.

 19. 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 killing situations:

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."

20. 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). 

21. On what may amount to extenuating circumstances, the Court on the above cases said: 

"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." 

22. 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 until they died.

23. In that same year (2004) in The State-v-Mark Poroli (2004) N2655 at Mendi in Southern Highlands Province. The prisoner pleaded wilfully killing a policeman on duty. The killing was one of those most serious cases. The incident occurred during the 2002 general elections. There was a shootout between police and the people who gathered for election campaign. The offence took place between Koroba and Tari in the Hela Province. During that shootout, a relative of the prisoner was shot dead. After leaving the intending candidate at Koroba, the escort party was on their way back to Tari. On their way, one of the vehicle's tyres got punctured and because of the earlier confrontation with the people, the police escort fled on foot. Some of them including the victim spend the cold night in the bushes because it was dark. 

24. The next day, the prisoner and his men found the victim hiding on the hill side. They took him up to the top of a hill on a little cliff. They made him stand right on the edge of the cliff. They asked a pastor to pray for the victim. After the pastor prayed, they opened their eyes. Then the prisoner asked the deceased to say his last prayer. He took a few steps back, less than a meter and fired a shot right into the forehead of the policeman. He died instantly and fell down the cliff to the road.

25. In the New Guineas Islands, in this Province in the National Court has imposed death penalties on several offenders. All those offenders were charged with the crime of willful murder. In The State-v-Gregory Kiapkot & 4 Others (2012) N4381 a multiple wilful murder cases 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. 

26. In The State v Selmon Amos & Misialis Amos (2012) Cr.No.697 of 2011 unnumbered judgment it was a killing of three separate victims at end of Tokua airport, Kokopo, the two accused father and son were found guilty of the crime of willful murder under s.299 of the Criminal Code. The killing was the result of grudges over land issues regarding a plantation situated somewhere near Labom village on the West Coast of Namatainai, New Ireland Province. They were charged with collaborating with each other pursuant to s.7 and 8 of the Criminal Code. The pair was sentenced to death. 

27. There are other wilful murder cases where Judges of this Court have imposed terms of years. For instance, in The State v Seth Ujan Talil (17.11.2010) N4159, Cannings, J imposed a sentence of 40 years for a double murder committed during a mediation proceeding. Seth Ujan Talil was convicted after trial of two counts of wilful murder. The two deceased were brothers ages 35 and 42 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The doctor found that the cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

28. In The State v Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae, the prisoner was found guilty and convicted of the wilful murder of an innocent young man. The deceased in that case was abducted by the prisoner and his accomplices allegedly in retaliation for the death of a young man and cut with bush knives and axes all over his head face and stabbed several times on his chest until he bled to death. The court found the case to be a worse case of wilful murder. It described the killing as "heinous, senseless, brutal, barbaric and cold blooded". The offender was sentenced to life imprisonment. 

29. In The State v Wilson Okore, (6.2.2009) CR No.584 of 2006, unreported & unnumbered judgment the same 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. 

30. 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. As the victim was trying to wash after undressing the offender attacked him with a long bush knife resembling a sword stabbing him several times to death in the process. The court described the attack on the deceased involved pre-planning and was ferocious and mercilessly driven by rage or hate over the superstitious belief that the deceased had caused or done sorcery upon the prisoner's aunt causing her to fall ill. A sentence of 50 years imprisonment in hard labour was imposed. 

31. The Constitution protects and preserves life in such a way that no one must intentionally take it away like an ordinary commodity. Life itself is very valuable and more precious than any wealth. Once life is taken, or lost, it is lost forever. Neither compensation, nor wealth will assist to restore it. Even if compensation had been paid, it cannot reduce the gravity of this crime and it cannot restore the life of Patrick Leo Alois (deceased): The State-v-Rex Lialu [1988-89] PNGLR 449. 

32. The framers of our Constitution valued life very much and decided that, no one must be deprived of his or her life intentionally. However, the Constitutional Planning Committee decided that where an offender has been convicted of an offence punishable by death, such right is no longer available to him or her. Thus s.35 of the Constitution states:

"35. Right to life.

(1) No person shall be deprived of his life intentionally except—

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war".

33. It is very obvious from the above provision of that no person has the right to end another person's life unless it is under the circumstances or exceptions set out under sub paragraphs (a) to (c). The Constitution is the Supreme Law of this country and it prohibits unlawful killing of human beings. There is no excuse for any killing that happens outside what is defined in s.35(1)(a)(b) and (c) of the Constitution.

Instant Case

34. I am of the view that the prisoners' case would fall into category 3 or 4 suggested in Manu Kovi v The State case (supra). This is because I find from the facts presented that the prisoners used offensive weapons namely bush knives and they well knew the consequences of what could follow or result. There may have not been any pre-planning plans for the murder of the deceased. However, what the prisoners did to Alois was out of proportion by the manner of attack using bush knives to attack the victim.

35. The three of you revealed your intentions by repeated attacks first on the log pond, and then after the victim was seated on the boat, you savagely attacked him there until he fell into the sea. He had to be assisted and those who stood by lifted him up back into the boat. The attack and threats did not stop there. When the victim was at the health centre, the three accused even followed him carting your bush knives and even rubbed them against the walls and cement floor of the health centre. This kind of attitude was a show of disrespect for authorities and quite un-protocol, unethical and revealed that you intended to kill the victim. 

36. The court ought to consider whether the injuries caused to the body of Alois, were administered by application of bare handed or instruments were used. The body of the victim was darted with bush-knives wounds which were caused by you three cutting the victim like a dead log or pig. The injuries received were a direct result of the prisoners cutting the victim's body with long bush knives. 

37. On sentence I consider the prisoners' guilty plea to this very serious charge. I consider their previous good characters. I consider the prisoners' plea on their allocutus for the Court to be lenient with them on sentence. I have considered counsels submission on mitigations and aggravations. 

38. The Supreme Court in Manu Kovi's case differentiated between 'ordinary' and 'special' mitigating factors. The following is what the Court said in the above case at page 5 of the judgment:

 "Ordinary mitigating factors include the accused's prior good character, stable good family back ground, education and religious background, first offender, guilty plea, remorse and co-operation with police. Special mitigating factors include the offender's very young or very old age, poor health and payment of customary compensation"

39. On the instant case, I have considered ordinary mitigations. I consider the three prisoners ages. Genesis Mai is 25 years of age, James Mai 33 years and Steven Mai is 41 years. The basic principle that the sanctity and value of a human life is more precious than anything life can afford, must be safeguarded, protected and must be given prominence. Once a life has been lost, it is forever lost. No compensation will help to resurrect the deceased to life. 

40. If you three had any grudges against Patrick, or if it was true that Alois Patrick killed you relative, why not call the police and report the matter to them so they could take it from there and arrest whoever was responsible for the killing. Genesis and Steven tried to explain and justify your action by saying you had reasons why you attacked the deceased. The Court cannot accept what you said in allocutus. 

41. Your lawyer said in his address to this Court on sentence that you three were brought up in Christian environment. If that was true, I fail to understand why go to the extreme of killing and taking the life of the person who had not been proven guilty by any Court of law or even there is no evidence of you having a meeting with the relatives of the two deceased, you own and those of Alois Patrick. 

42. 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. You three must realize that, you caused the premature death of the victim and you are all fully responsible for the death of the deceased. The use of offensive weapons such as those ones used in the killing in the instant case or an axe or, gun or any other weapons used for the killing are dangerous and offensive weapons. When such weapons are used to inflict a wound on somebody with intention to harm and thereafter the victim dies, it is very serious. The deceased of this case did not runaway but stood there in front of the three of you hopelessly and you chopped him up like cutting a tree. 

43. The court has mentioned something on the ordinary and special mitigating factors, I must now balance such mitigations against the gravity of the offence committed and a sentence the prisoners. The court must impose a penalty that must or should reflect the aggregate effect of the balancing act and any penalty imposed must fit the crime committed.

44. Homicide offences like any other crimes such as rape or armed robbery is a serious crime of violence and the gravity of the circumstances of the killing in any particular case may outweigh ordinary or even special mitigating circumstances. I must consider the degree of force used against the victim in the manner in which the prisoners repeatedly applied their bush knives to cut the victim. The attack was far above the viciousness with which the attack was carried out on the armless victim in front of his wife and the children. 

45. The Court must reiterate here that, according to the post mortem report the body of late Alois was dotted with wounds on his left arm there were four (4) separate wounds. There were wounds on his left and right thighs. There was one on his right hand and the abdomen. There were stitches on the head. To be exact, the doctor found there were nine (9) wounds with the following description:

1.	Wound on right frontal to parietal region of the head sutured with nylon.
2.	8cm wound of left upper arm sutured with nylon.
3.	5cm wound on left lateral elbow sutured with nylon.
4.	16cm wound at left anterior middle forearm to posterior proximal forearm sutured with nylon.
5.	9cm wound on left lateral aspect of palm sutured with nylon.
6.	Abrasion at posterior aspect of chest.
7.	18cm wound on left middle anterior thigh sutured with nylon.
8.	18cm x 5cm wound on the right posterior thigh sutured.
9.	13cm wound on right lateral posterior aspect of knee sutured.
10.	 Scalp laceration at right frontal region extending to parietal region.
11.	Skull fracture at right frontal region to parietal region of skull.
12.	 Laceration of brain matter and dura matter.
13.	Blood stained inner dura matter – Cerebral haemorrhage. 
 
The cause of death was cerebral haemorrhage and skull fracture.

46. I find from the facts that there was deliberate intention to harm the deceased. The prisoners came to the scene with their bush-knives and hunted for the victim. They left where they had been sleeping and deliberately set out looking for the victim until they found him and attacked him like a wild pig. 

47. Your case is aggravated by the application of offensive weapons being your bush-knives. You three were together in that group attack. The crime of willful murder attracts the maximum of death penalty. Your case involved a deliberate killing. You three intended to kill Alois Patrick. 

48. I have also considered counsels' submissions on sentence and what you three 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 either life imprisonment or a long term of years should be imposed on each prisoner. The reasoning of this case must sound a clear warning to the general public and the would be likely offenders of the seriousness of willful murder.

49. The aggravations outweigh any mitigations of this case. I consider imposing a penalty in the range of category 4 of the sentencing tariffs suggested in Manu Kovi case. The prisoners are sentenced to terms of 50 years each. The custody period be deducted and the prisoner shall serve the balance.

_____________________________________________________________
The Public Prosecutor: Lawyer for the State
Kamen Lawyers: Lawyer for the Prisoner.