N6391
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 908 OF 2014

THE STATE

V

TONAIYA TUMARIS
Defendant

Kavieng:  Kangwia J.
2016:    20th May, 06th July

CRIMINAL LAW - Sentence for willful murder - willful murder of policeman in line of duty - willful murder falling into worst category of offence attracting maximum prescribed penalty 

SENTENCE – Lack of protection for policemen and women as frontline operators in upholding and enforcing rule of law allows disdain and contempt for law to set in – Society disintegrates into lawlessness – Every person assumes self-help solutions to every aspect of life – Necessity to provide assurance to police of protection under law
Sentence – Where duty of policeman acting out of spite precipitated violent act by prisoner, culpability is diminished overall and aids prisoner to avoid death sentence

Cases cited:
Alois Erebebe –v- The State (2013) SC1228; 
Clement Monumin –v- The State (1997) SCR 56 of 1997; 
Joe Foe Leslie Leslie –v- The State (1998) SC560; 
Masoliye Pyakali –v- The State (2004) SC 771; 
Manu Kovi –v- The State (2005) SC789; 
Peter Nabiri & Ors. –v- The State (1978) SC137; 
The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65; 
Tony Inunu Api –v- The State (2001) SC684;
The State –v- Steven Loke Ume & Ors. CR 686 of 1996; 
The State –v- Ben Simakot Simbu (NO. 2) (2004) N2548; 
The State –v- Arua Marigi Hariki (2003) N2332;
The State –v- Kepak Langa (2003) N246.
Ure Hane –v- The State [1984] SC279; 

Counsel:
R. Luman, for the State.
M. Mumure, for the Prisoner.

6th July, 2016

1.	KANGWIA J: Tonaiya Tumaris appears for Sentence for the willful murder of one Bung Melung, a member of the Community Auxiliary Police at Metekavil village in the Taskul district, New Ireland Province. He was found guilty after a trial and convicted of willful murder under s 299 (1) of the Criminal Code Act(CCA hereon).All his co-accused were acquitted.

2.  	The deceased was a member of the Community Auxiliary Police. The prisoner was wanted in connection with some offence he allegedly committed. He was on the run until the day of the incident when the deceased and the other men surrounded him in a house with the co-accuseds who were later acquitted. The deceased directed the prisoner to accompany them to the main village to deal with the allegation leveled against him.  

3.  	On the way, the prisoner who was walking immediately at the back of the deceased swung his bush knife and chopped the deceased a number of times.  The deceased died instantly from the injuries sustained. The post mortem report revealed that the deceased sustained multiple knife wounds to several parts of the body including a cut from the right side of the face to the top of the ear region fracturing the pirated bone along the right side of the neck.  

4.  	Arteries and nerves were obviously severed along the neck with extensive bush knife wounds that caused a severed spinal vertebra damaging nerves and major blood vessels. The shoulder also had two huge cuts. The report concluded that the cause of death was due to massive blood loss from the knife wounds.

5.  	The prisoner is 24 years old single and comes from Meteselen village, Taskul, New Ireland Province. He is the eldest of 3 children and his parents are both alive.

6.  	On his allocutus the prisoner apologized and said; 

“If I had not done it, I would have been the third person to have died. I have seen people who killed others still in the village. I tried to defend myself and that eventuated.  I say sorry to the government and New Hanover in regard to that.”

7.  	On his behalf, Mr. Mumure submitted that the imposition of the death penalty that the offence of willful murder prescribed was discretionary. The circumstances of the case did not attract the maximum or near maximum sentence as there was no special aggravating factor or extenuating circumstance that would operate to attract the maximum prescribed penalty.

8.  	It was submitted that the circumstances of the arrest were that there was defacto provocation, where the deceased went looking for the prisoner over a trivial matter which involved the deceased’s niece; that the prisoner was pursued out of spite and not in pursuit of enforcing law per se; that the prisoner felt intimidated and threatened so he attacked the deceased who was armed with a firearm.

9.  	It was submitted that the principle of law that the maximum prescribed should be reserved for the worst type of each offence applied here.  After highlighting the categories of worst type of willful murder as suggested in Ure Hane –v- The State [1984] SC 279 Mr. Mumure submitted that the present case was less serious than Ure Hane, attracting a sentence of 20-30 years under category two of the guidelines in Manu Kovi –v- The State (2005) SC 789.

10.  	Mr. Luman for the State sought the death penalty. It was submitted that this was a case of a cowardly and cold blooded attack from the back with a lethal weapon on a defenseless person who could not evade the attack or defend himself. The deceased was a policeman in line of duty who laid no finger on the prisoner when attacked.

11. 	 He referred to the case of Ure Hane (supra) in which the Supreme Court suggested that an attack on a policeman on duty fell under the worst category of willful murder as supporting the ultimate penalty for the present offence. It was submitted that there was no respect for the rule of law in circumstances where protection for policemen and women as front line enforcers of the law was absent. Although, the deceased could not be protected now others can be protected by the sentence this Court imposes.

12. 	 The following cases were cited as supporting the State’s submission for the Death penalty;

(i).	In the case of Alois Erebebe –v- The State on an appeal against a sentence of thirty years and life imprisonment from nine convictions for willful murder the Supreme Court found that the trial judge erred in not considering that death in a payback and ambush killing fell into the worst category of willful murder. The Supreme Court increased the sentence of thirty years to life imprisonment and life imprisonment to Death sentence respectively.

(ii).	In Peter Nabiri &Ors –v- The State (1998) SC 137 the appellants appealed against a sentence of life imprisonment for the attempted murder of two policemen after a vehicle speed chase.  The Supreme Court in affirming the sentence of life imprisonment held that the circumstance of the offence fell into the worst category despite the youthfulness of the offenders.

(iii).	In Joe Foe Leslie Leslie –v- The State (1998) SC 560 the Supreme Court dismissed an appeal against a life sentence for the attempted murder of a policeman by a prison escapee who pleaded guilty.

13.  	In citing the above cases, Mr. Luman submitted that on appeals against sentences of life imprisonment for the attempted murder of policemen in line of duty the Supreme Court affirmed the sentences as not excessive. In the present case the policeman died and therefore cannot be given any sentence other than the sentence of death.

14.   	The law creating the offence of willful murder under s. 299 Criminal Code Act states as follows;

	299.	Willful Murder.

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

15.  	Willful murder is the most serious of all homicides. The maximum prescribed penalty of death for willful murder is the highest and the ultimate sentence a Court could lawfully impose in any offence. There is no penalty more severe or higher than the death penalty under the Criminal Code Act.

16.  	The death penalty is authorized by s 35 (1) (a) and to an extent s 36 (2) of the Constitution in the following manner;

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;

36 Freedom from inhuman treatment

(1)	No person shall be submitted to torture (whether physical or mental) or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
(2)	The killing of a person in circumstances in which s 35 (1) (a) (right to life) does not of itself contravene subsection (1) although the manner or the circumstances of the killing may contravene it.

17.  	The law is also settled that everyone is entitled to life. The only way to terminate one’s life is as determined by nature or as authorized by law. Also by law the Court is required to consider whether the death penalty was appropriate after conviction for willful murder. This is the task I am faced with here.

18. 	 In the State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65 His Honour Woods, J said this of what willful murder represents which I adopt here;

“But how can willful murder after the clear statutory distinction of it from the two other levels of unlawful killings – murder and manslaughter – lend itself to degree.  There cannot be a more wilful murder; oh yes there may be different levels of violence used but the end result is the same. The victim if he could talk from beyond the grave would surely see no difference between one gunshot to the head and four shots to the head where as in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Willful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used is the extinction of human life.”

19.  	As to the penalty for willful murder it is settled law that the decision to impose the death penalty under s. 299 (2) is discretionary. The Court also has discretion pursuant to s. 19 (1) (aa) of the CCA to impose a lesser sentence than the prescribed death penalty.

20. 	 Not all willful murder attracts the death penalty. In Ure Hane –v- The State (1984) PNGLR 105 Bredmeyer, J categorized various types of willful murder as attracting the maximum prescribed penalty for willful murder which at that time was life imprisonment. The categories are as follows;

(1)	A willful murder done in the course of committing a crime of violence such as theft, robbery, break & enter or rape
(2)	A willful murder of a policeman or a prison warder acting in the execution of his duty
(3)	A willful murder in the course of or for the purpose of resisting or avoiding lawful or avoiding lawful arrest or assisting in an escape from lawful custody
(4)	Deliberate and vicious killing of law enforcement officers on duty.
(5)	Payback killing of a completely innocent man.
(6)	Any 2nd or 3rd murder.
(7)	Any murder where the offender has a long record of violence such that he is likely to commit such offence in the future.
(8)	Willful murder of the GG, PM, the Leader of the Opposition, the Speaker of National Parliament, the CJ, a visiting Prime Minister, the Pope, the Bishop or other VIPs.

21. 	 The suggested categories of willful murder in my view would be a guide only and not restrictive. Each willful murder would be determined on its own peculiar circumstance as to whether the maximum prescribed penalty was warranted. Although, the categories of willful murder suggested in that case were to apply to the maximum prescribed penalty then being life imprisonment, I see no reason why the categories suggested there could not apply to the current maximum prescribed penalty of death.

22.  	Countrywide, upon the amendment of the maximum prescribed penalty from life imprisonment to a sentence of death for willful murder a number of prisoners have been sentenced to death for what have been considered as worst types of willful murder.

23.  	At the top of the list in my view is the decision of the Supreme Court in Alois Erebebe –v- The State (2013) SC 1228.  In that case, the prisoner was involved in an ambush of a vehicle in which nine people were killed with firearms, bush knives and axes. The National Court imposed life imprisonment and thirty year sentences respectively on the offenders.

24.  	On a cross appeal by the Public Prosecutor against inadequacy of the sentence the Supreme Court set aside the sentence of life imprisonment and the thirty years imprisonment and imposed the death sentence and life imprisonment respectively. The Supreme Court held among others that;

“The killing of innocent children and the ambush killing akin to a highway robbery fell within two categories suggested by Bredmeyer, Jin Ure Hane as being within the most serious kinds of willful murder. The trial judge erred to the extent that he found that the facts of the case did not fall into those categories.”

25.  	The Supreme Court in a number of appeals against severity of sentence was also of the view that the maximum prescribed penalty for willful murder should have been imposed.

26. 	 In Clement Monunun –v- The State (1997) SC 56 of 1997 (Unreported) where the offender chopped a 2 year old child on the head with an axe over an argument with the child’s father over oil palm block the Supreme Court in refusing the appeal said; 

“When we consider the facts of the present case, that is the pre-mediated intentional killing of a totally innocent two year old, we are somewhat surprised that the trial judge did not impose the maximum penalty.”

27. 	 In Tony Imunu Api –v- The State (2001) SC 684 the appellant smashed the skull of a student and concealed his body. In dismissing an appeal against sentence the Supreme Court said; 

“We are of the opinion that this was a worst type of willful murder . . . He died in bizarre circumstances, and we think that this is an appropriate case of warranting the death sentence . . . To describe this killing as bizarre or brutal would clearly be an understatement, in our view.  We therefore hold the view that the prisoner should have been sentenced to death.”

28.  	In Masoliye Pyakali –v- The State (2004) SC 771 where the appellant and others ambushed and killed a businessman, his wife and an infant child after setting up a roadblock the appellant was sentenced to life imprisonment. The Supreme Court while dismissing the prisoners’ appeal against sentence said; 

“In these circumstances, the highest penalty for willful murder the death penalty was called for . . . If the State cross appealed against sentence, we could increase the sentence to the maximum death penalty.”

29. 	 In all the above appeals the Supreme Court commented that the Public Prosecutor was remiss of not cross appealing against inadequacy of sentences.

30. 	 In a number of cases the National Court has imposed the death penalty. The types of cases where the National Court imposed the death penalty included;

1.	Where the prisoner raped and viciously and brutally assaulted and chopped the mother of a man accused of killing their relative the National Court sentenced the prisoners to death. (See the State –v- Steven Loke Ume &Ors CR 686 of 1996 (Unreported Judgment dated 7th February 1997).
On appeal against severity of sentence the Supreme Court quashed the sentence of death imposed by the National Court and sentenced each appellant to imprisonment for life, the main basis being that there was no evidence to differentiate the role played by each appellant in the killing. (See Steven Loke Ume &ors v the State (2006) SC836)

2.	In the State –v- Ben Simakot Simbu (NO. 2) (2004) N2548 His Honour Kandakasi, J sentenced the prisoner to death for the willful murder of a mother and child after the mother was raped in front of the child. This case was viewed by His Honour as worse than the case of the State –v- Arua Maraga Hariki (2003) N2332 and Tony Imunu Api –v- The State (2001) SC 684.

3.	In the State –v- Arua Maraga Hariki (2003) N2332 the prisoner was sentenced to death for the willful murder of two deceased. The prisoner killed the 1st deceased by suffocating him of air. The body of the 2nd deceased was also found nearby. There was no direct evidence that the prisoner killed both deceased. The 3rd person escaped from the scene.
4.	In the State –v- Kepak Langa (2003) N2461the prisoner was sentenced to death for the killing of a pastor’s son with bush knives in an ambush attack in front of his siblings in a payback killing described as a cold blooded killing.

31. 	 It is believed all of those sentences have been appealed.

32.  	All the cases referred to were different from each other but the Courts considered that each case warranted the death penalty.  It is therefore obvious that there is no precise formula to be employed in considering whether the maximum prescribed penalty should or should not be imposed. The facts and circumstances surrounding the willful murder would necessarily determine how and to what extent the Court exercised its sentencing discretion.

33. 	 The present case involved the killing of a policeman in the line of duty. The prisoner was asked to follow the deceased to the big village to deal with a complaint against him. Along the way the prisoner suddenly attacked the policeman with a bush knife repeatedly.

34.  	In the Ure Hane (supra) case the then maximum prescribed penalty of life imprisonment was recommended for the willful murder of a policeman in the execution of his duty. The Supreme Court in Steven Loke Ume (supra) also stated that the death penalty may be considered for the willful murder of a policeman in line of duty.

35. 	 In Peter Nabiri & KutoiSoti Apia –v- The State (1978) SC 137 an appeal against a sentence of life imprisonment for the attempted murder of a policeman was refused and the sentence of life imprisonment was affirmed. The Supreme Court said; 

“The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them.”

36.  	In Joe Foe Leslie Leslie –v- The State (1998) SC 560 the appellant appealed against life imprisonment imposed for the attempted murder of a policeman when he opened fire at the policeman who opened the door to where the prisoner hid. The Supreme Court dismissed the appeal and expressed similar sentiments as in Peter Nabiri and Kutoi Soti Apia (supra) relative to attacks on police officers carrying out their lawful duties.

37. 	 In the State –v- Mark Poroli 2004] PNGLR 9 the prisoner was sentenced to death for the wilful murder of a policeman who was shot at point blank range after telling the policeman to say his last prayers. The Court held that the wilful murder of the policeman under the circumstances was worthy of the Death penalty. The court stated that the victim was gruesomely and mercilessly executed by the prisoner. It is believed the Supreme Court dismissed the prisoner’s appeal for want of prosecution.

38. 	 The cited cases demonstrate the serious consideration the Courts are giving to cases involving death or injury caused to police officers acting in the execution of their lawful duties. Deterrence is reflected in the sentences imposed however, protection of policemen in the discharge of their lawful duties seems to be the basic purpose behind the sentences imposed.

39. 	 The police men and women are the front line operators in upholding and enforcing the rule of law. When there is a lack of protection, disdain and contempt for law generally would set in. Society disintegrates into lawlessness and anarchy where every person or group assumes wanton self-help solutions to every facet of life.

40. 	 It is therefore necessary to provide an assurance to the police and other agencies dealing with law and order generally that there is protection for them under law by the type of sentences the Courts impose on offenders.

41. 	 In the present case the factors operating in favour of the prisoner are that he is a first time offender. He is a villager with no formal education. He acted alone. There was no pre planning involved. In his Record of Interview he admitted to police of the offence he committed. He expressed remorse to some extent but gave a brief explanation in his allocatus as to why he did what he did.

42.  	The aggravating factors operating against him are that he pleaded Not Guilty and a trial was conducted. A lethal weapon was used in the commission of the offence. There was multiplicity of attacks occasioned by the prisoner. 

43. 	 Serious physical injuries were inflicted on the deceased causing instant death from massive loss of blood. The killing occurred in view of many people. The deceased was in his line of duty when attacked by the very person who was being taken to the big village to deal with allegations leveled against him.

44.  	The attack was a cowardly attack from the back of the deceased. It was on an unsuspecting person who could not defend himself even though the deceased was said to have carried a gun. The deceased did not lay a finger nor did he offer the prisoner any resistance.

45.  	The offence is rife in the area where the prisoner hails from.  Most of the cases before this Court since I took up posting in 2014 have been related to violence and death. Attack by the use of a bush knife seems to be the modus operandi of settling disputes in his area. The case listings in the National Court in Kavieng reveals startling statistics reflecting the prevalence of offences attached with violence.

46.  	According to the Crimes List for March 2015 under Taskul Circuit which included the prisoner, there were 52 current matters. Out of that number, 40 were charged with homicide offences. That gives some indication	as to the prevalence of homicide offences committed in the area where the prisoner comes from. A deterrent sentence is therefore necessary.

47.  	There was some element of pre-meditation present. According to him his apprehension was in circumstances similar to an earlier instance in which a relative of his was allegedly killed by the deceased and others. 

48.  	The deceased it was alleged did nothing about that death. When he was apprehended he felt threatened and intimidated. He was determined to prevent a repeat of the earlier incident on his life. When the opportunity came his way he acted the way he did. 

49.  	It is obvious therefore that the aggravating factors outweigh those in mitigation. The prisoner it seems was wanted by the deceased for an earlier allegation that he was having an affair with the deceased’s niece. He was also alleged to have other allegations against him.

50.  	From the evidence of State witnesses it is reasonable to	infer that the prisoner was being sought out of spite because the alleged victim was the niece of the deceased. However, it is generally accepted that it is the duty of police to follow up on criminal allegations laid against a person. In the present case the deceased was duty bound to follow up on the prisoner’s involvement with his niece.

51.  There is no evidence of threats issued or intimidation offered by the deceased that would lead the prisoner to be threatened or intimidated. Apart from the prisoner’s evidence that the deceased pointed the gun at him, there is no evidence from the eye witnesses on both sides that the deceased laid a finger on the prisoner, least of all point a gun. There was no evidence that while they were walking together the deceased threatened or intimidated the prisoner. 

52. 	 There is evidence that the deceased walked in front of the prisoner with the gun slung over his shoulder. The prisoner was not escorted as a captured felon. Everyone at the relevant time was armed with spears and bush knives. Everyone walked freely. The prisoner’s relatives mingled with those who followed the deceased. In my view feeling of intimidation and threat could not arise under those situations.

53.  	The assault on the deceased caught everyone by surprise.  No one in the group travelling together went to the aid of the deceased. The prisoner inflicted several wounds to various parts of the body. Under these circumstances there can be no pre-planning inferred.

54.  	The manner of attack in the present case is similar in nature to the attack described in the Manu Kovi case. There were repeated attacks on the victim with a bush knife in full view of a lot of people. Here, the victim was a policeman in line of duty.  

55.  	The law places willful murder of a policeman in line of duty into the worst category of wilful murder attracting the maximum prescribed penalty.

56.  	The present case is a terrible case of a cold-blooded and cowardly killing of an unsuspecting defenseless policeman who laid no finger on the prisoner. The deceased was repeatedly cut to achieve nothing less than death. It demonstrates a clearly blatant disregard for human life. This case no doubt falls into the category of wilful murder that pleads for consideration of the death penalty.

57.  	Counsels have presented persuasive arguments.

58. 	 For the State it was submitted that the two cited cases of Peter Nabiri & Kutoi Soti Apia and Joe Foe Leslie Leslie involved attempted murder of policemen in line of duty. The Courts sentenced them to life imprisonment. The present case it was submitted involved the death of a policeman in line of duty hence the life sentence or any lesser penalty could not apply except death.

59. 	 For the Defence it was submitted that the deceased policeman acted out of spite for the prisoner because the policeman’s niece was allegedly involved and not in pursuit of a genuine lawful purpose. It attracted personal interest more than carrying out a professional duty. It would diminish culpability of the prisoner hence the death penalty could not apply.

60.  	The off-cited case of Manu Kovi –v- The State (2005) SC 789 suggested four categories of sentence for all homicides with corresponding tariffs for wilful murder cases. In light of those suggestions the present case falls into category 3 which recommended life imprisonment. The case also overlaps into the 4th category which recommended the death penalty in circumstances where the special aggravating factor involved the intentional killing of a policeman in line of duty and the mitigating factors rendered completely insignificant by the gravity of the offence.

61.  	That position leaves me with the option of whether or not I should impose the death sentence.

62.  	As stated earlier sentencing generally is in the exercise of discretion. Whether or not to impose the death penalty is also in the exercise of discretion.

63. 	 The evidence in the Record of Interview of the prisoner (Exhibit ‘A’ & ‘B’) that the State tendered into evidence shows the following.

64.  	The prisoner was suspected of following a female named Kalamana Dam who was, according to other evidence, said to be the niece of the deceased. The prisoner told the deceased that he would sit with them to settle the matter but the deceased did not accede to it. The deceased instead gathered men armed with knives and spears to go get the prisoner. 

65. 	The sight of the armed men in the company of the deceased angered the prisoner because as he said, the armed men had been earlier involved in the killing of one named as Pulei. No action had been taken over that killing which led the prisoner to opine that the deceased knew and did nothing and was now out to make him the next victim using the problem of his niece as the basis. Being angered by all these he took action to stop the deceased from victimizing him further. 

66.  	In my opinion given the evidence as it stands there is present some element of de facto provocation. The nature of the complaint involving the deceased’s niece was one of having affairs with the prisoner. It was a trivial matter that in my view did not require tracking down of the prisoner by armed men. 
67.  	The prisoner was forced to sleep in the bush two nights only to be chased back by showers when surrounded by armed men led by the deceased.

68. 	 In my view the prisoner was led to be angered and intimidated by the deceased’s actions and also feared reprisals from those who went to get him.  He no doubt would have felt a victim of injustice caused, hard done by and unwanted. All these led the prisoner to retaliate and put an end to the misery allegedly caused him.

69. 	 I agree with the defence submission that the deceased acted out of spite for the prisoner because the matter against the prisoner involved his niece. It became more a personal matter than a serious case of police work. The prisoner having sexual relationship with the deceased niece could have been amicably settled by mediation, Village Court process or even summons where it warranted. It did not require the prisoner to be tracked down and apprehended by armed men.

70.  The actions of the deceased in my view precipitated the violent act committed by the prisoner which circumstance I consider tends to diminish culpability overall. This operates as a significant mitigating factor that aids the prisoner to avoid the death sentence.

71. 	I sentence the prisoner to life Imprisonment.

________________________________________________________________
Public Prosecutor	: Lawyers for the State
Public Solicitor	: Lawyers for the Defence