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State v Digara [2018] PGNC 122; N7219 (23 March 2018)

N7219

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 154 OF 2015

THE STATE

V

NAPOLEON DIGARA

Popondetta: Liosi J
2018: 08^th, 09^th, 21^st & 23^rd March

CRIMINAL LAW – Wilful Murder – S.299 Criminal Code – Prisoner in company of accomplice – Assault on deceased with walking stick/crutch on head – Accomplice used stones – deceased died 4 days later – death caused by severe head/brain injury – Sentencing – Conviction after trial –

Case Cited:
Allan Peter Utieng v. The State, (Unreported judgment delivered in Wewak on 23/11/00 SCR 15 of 2000
Goli Golu v. The State (1979) PNGLR 653
Manu Kovi v. The State (2005) SC 789
Steven Loke Ume & Ors v. The State (2006) SC 836
Ure Hane v. The State (1984) PNGLR 105
The State v. Bernard Hagei (2005) N2913
The State v. Yanis Ipiri (2008) N3512
Thress Kumbamong v. The State (2008) SC 1017
The State v. Mark Bongede (2012) N4683
The State v. Lotivi Mail, Moses Mal & Ors (2012) N456
The State v. Ladinot Kilala, Diman Nanot and Batil Ragia (No.3) (2012) N5080

Counsel:
Mr. D. Kuvi & Mr. P. Tusais, for the State
Mr. E. Yovisa, for the Prisoner

DECISION ON SENTENCE

23^rd March, 2018
1. LIOSI J: On the 8^th March 2018, the prisoner pleaded not guilty to 1 Count of Wilful Murder that he on the 5^th July 2015 at East Ambogo, Oro Province wilfully murdered one Nigel Philip Boruga Junior. I found him guilty of wilful murder on 20^th March 2018. This is the decision on sentence in respect of the prisoner.

Facts

2. Napoleon Digara and his nephew Jerome Digara assaulted Nigel Philip Boruga Junior after they caught him trying to steal from his house. The previous evening the deceased had also disturbed the prisoner whilst under the influence of alcohol. The prisoner and his nephew assaulted the deceased many times at different locations. The deceased was continuously hit on the head by the prisoner’s walking stick or crutches. The deceased died several days later in hospital due to the injuries. The medical report states that death resulted from severe head/brain injuries.

Issue

3. After convicting the prisoner the court had the difficult time of determining what sentence to impose on the prisoner. Sentencing is not an easy task. The courts are faced with weighing up the evidence and try to come to a balanced and fair decision.

The Law

4. Section 299(2) Criminal Code says that a person who commits wilful murder shall be liable to be sentenced to death. With respect to the words “shall be liable to be sentenced to death” to me means that the court still has a discretion to impose a sentence ranging from a lower scale up to death sentence. In any case Section 19 (a) (a) of the Criminal Code makes the sentence of death discretionary.

5. This court is reminded by the Supreme Court in Goli Golu’s case that:

“wilful murder has always been regarded as one of the most intrinsically serious of all offences known to mankind. That is why in most jurisdictions it carries a fixed penalty sometimes death but frequently life imprisonment”.

6. In Ure Hane v. The State (1984) PNGLR 105, Bredmeyer J sets out some non-exhaustive list of the most serious instances of wilful murder. His list included:

• a wilful murder committed in the course of committing a theft, robbery or rape;
• a wilful murder of a policeman , a prison warder in the execution of his duty.
• a wilful murder in the course of avoiding or resisting arrest of person in police or court custody.
• a wilful murder in a payback killing of innocent person
• a wilful murder in a second or third murder
• offender has long record of violence
• wilful murder of Governor General, Prime Minister, Chief Justice, Bishop and other Very Important Persons (VIP’s).

7. At the time of Ure Hane’s decision the maximum penalty for wilful murder was life imprisonment. Parliament had it amended to death penalty in 1999.

8. The Supreme Court in Manu Kovi v. The State (2005) SC789 set out various guidelines to be taken in consideration in order for the court to determine the appropriate sentence for wilful murder offences. Counsels would no doubt be aware of this considerations and guidelines that have been set out in table form in many subsequent judgments.

9. A year later the Supreme Court case of Steven Loke Ume & Ors v. The State (2006) SC836 listed 8 categories where it said death penalty may be imposed when dealing with wilful murder cases. For purposes of this case this categories are inapplicable as they do not apply as they can be slotted in category 4 of Manu Kovi’s case which deals with worst category wilful murder offences.

10. The circumstances of this case as found on the evidence is that the prisoner and his nephew started assaulting the deceased upon catching him at his house. The assault continued down to witness Dian Boru’s house then up to the main road. This was a unplanned attack and was simultaneous straight after the deceased was caught at the window of the prisoners house that morning. It did not involve preplanning to kill the deceased.

11. In the State v. Bernard Hagei (2005) N2913 the court said:

“there are so many wanton killings happening in the country at will as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal, horrific and cold blooded killings are becoming too frequent.”

12. I totally agree and endorse the observations of the National Court in that case. I make the same observations in this case. There was no need for a killing in this case. The evidence is very clear in that the prisoner was hell bent on going to report the matter to the Police, so why resort to what he did.

13. Life is only lived once and that’s how precious it is. The sanctity and value of human life is more precious than money or wealth. The courts must take a serious approach and take life as sacred. No amount of compensation or saying sorry or whatever will restore a life: The State v. Yanis Ipiri (2008) N3512.

14. The Supreme Court in Manu Kovi (supra) tried to lock down the courts to the sentencing ranges it suggested. However, the Supreme Court in another case of Thress Kumbamong v. The State (2008) SC 1017, did not agree and deviated and said the National Court should have a total discretion in determining an appropriate sentence in wilful murder cases.

15. So whilst Manu Kovi has laid down sentencing guidelines in homicide cases, the National Court still has and should have a total and final discretion in sentencing an offender.

Allocatus

16. On your allocatus, you said:

“I say sorry to mother law of this country. I say sorry to witnesses who are listening to my court case. I say sorry to Nigel Boruga Junior and his family. I say sorry to my family too. I say sorry to my mum and dad who died in 2011. I have 2 oil palm blocks. I bought 1 for K7,000.00 along the Kokoda Highway. The complainant burnt down 4 of my houses, my canteen, and my double cab Toyota Hilux I bought for K13,000.00. I am the only child in the family. I have 12 children. I have 1 leg. At the moment I do not know where all my children are. I ask the court to have mercy on me and to give me a lesser sentence or good behaviour bond.”

Defence Submissions

Personal Particulars

17. You are 47 years old from Horenge Village, Kokoda Local Level Government, Oro Province. You were educated up to Grade 6 and attend Anglican Church. You were previously married with 2 wives and have 12 children altogether. The 2 wives have since deserted you and at the time of the offence you were living with your children. I have no information as to when your wives left you and for what reason. I also note that I had no information on your children until I enquired during submissions in mitigation whereupon I was advised that you have 12 children with ages ranging from 4 years – 17 years. You are the only child in your family and you live a subsistence lifestyle with support from your relatives. Your parents died in 2011.

You have no prior criminal records. Your lawyer submits that you also have properties. You have a canteen, a Toyota Hilux double cab worth K13,000.00 and a semi-permanent house. All this properties were destroyed in the aftermath of the offence.

18. In determining the appropriate sentence, the first issue is whether the maximum penalty is warranted. I agree with counsels that this case does not fall into the worst category case but may fall within category 2 of Manu Kovi. He submits a sentence of 15 – 20 years is appropriate.

States Submission

19. The state submits the aggravating factors included a strong desire to kill, offensive weapons were used in a walking stick and stones and the victim was unarmed and defenceless. The mitigating factors included been a first time offender, an unplanned killing, first offender and the offender suffered reprisals from the deceaseds relatives. Mr.Tusais has cited a number of cases to assist the court. They include:

• The State v. Maik Bongede (2012) N4683. This case involved conviction after a trial. The court held there were strong mitigating factors which included spontaneous incident, no premeditation, attack on deceased was caused by the deceased’s conduct, offender suffered from reprisals by deceaseds relatives, good community record and significant compensation payment. Court imposed sentence of 24 years.
  
• The State v. Lotivi Mal, Moses Mal & Ors (2012) N456. Prisoner was found guilty after a trial. Third accused hit the deceased on the head with an iron bar for which he got 30 years, the first and second prisoners backed him up for which they got 20 years, and the 4^th accused counselled them to commit the crime for which he got 17 years. The sentences reflected their varying degree of involvement.
  
• The State v. Ladinot Kilala, Diman Nanot and Batil Ragia (No.3) (2012) N5080. The four (4) prisoners were convicted after a trial. This was a group attack on an innocent man. They attacked and repeatedly assaulted the deceased with wood and stones until he died at the scene. They ignored deceased cries for mercy and calls by bystanders. Lenalia J held this to be a merciless killing and sentenced them to 30 years each.
  

20. The issue now is, what then should the appropriate sentence be for you? It appears from the range of sentences that considering the circumstances of your case, your penalty may hinge around the 20 year mark. I say this noting the circumstances under which you perpetrated this offence and the aftermath consequences of this offence. I draw comparisons with the case of The State v. Mark Bongede (supra) cited by the State. I draw comparisons in that the offence you committed was spontaneous. There was no premeditation. You attacked the deceased because of the history of ongoing problems he had with you, and on your allocatus you said you suffered from reprisals by the deceaseds relatives. That is that your properties including canteen, a Hilux Toyota Double Cab, a semi-permanent house plus 4 other houses were burnt down by the relatives of the deceased. The state did not take issue with this and so I accepted it.

21. I also note from your allocatus that you asked the court for mercy and to give you a lesser sentence or a good behaviour bond. In response to this I echo the sentiments of the Supreme Court in the case of Allan Peter Utieng v. The State, (Unreported judgment delivered in Wewak on 23/11/00 SCR 15 of 2000. where the court said:

“It is now clear law that pleas for leniency due to family needs or concerns of an offender are direct consequences of one’s actions. Such factors therefore cannot be mitigating factors in your favour. The court therein observed that the offender should observe his background before committing the offense. It is a little too late to ask about the offender’s background including needs of his family concerns once he’s been proven guilty. His concerns and background shall have no weight against the need to impose sentence or punishment that fits the offence he has committed.”

22. The current authority on sentence as rightfully pointed out by the State is Manu Kovi v. The Sate (supra). On the face of it your case appears to fall under the 2^nd category of the case which states “On a plea or after a trial the 2^nd category attract sentences between 20 – 30 years. It involves some preplanning, use of weapons and a strong desire to kill. Because there was no preplanning involved herein, I would consider your case to fall in between category 1&2.

23. In the circumstances, and using my discretion under S.19 of the Criminal Code, I deem it appropriate to strike a balance between sentencing ranges in between the first and second categories of Manu Kovi’s case. In the circumstances, I sentence you to 18 years imprisonment in hard labour. I deduct the pre-trial custody period of 2 years, 6 months and 14 days. This leaves you with 15 years, 5 months and 17 days to effectively serve.

24. In closing I say this no matter how long you will be sentenced to prison, the life you have taken away will not be returned. It has been taken away forever and you will live with that for the rest of your life.

25. The sentence of the Court is as follows:

1. You are sentenced to 18 years imprisonment in hard labour.
2. Pre-trial custody period of 2 years, 6 months and 14 days is deducted.
3. You are to effectively serve 15 years, 5 months and 17 days.
   

Sentenced accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused