N8074

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 988 OF 2015, CR No. 989 OF 2015, CR No. 990 OF 2015,
CR No. 991 OF 2015, CR No. 993 OF 2015, CR No. 994 OF 2015,
CR No. 996 OF 2015, CR No. 997 OF 2015 & CR No. 998 OF 2015

THE STATE

v

MATARAP YASAM, SAKARIAS GIVIKAIN, BARNABAS BUKA,
SAM BUKA, ILAU GUBUTAU, GIAMKISI NAPTALI,
NAIMAN YANA, FRANCIS JOE & NICKI THOMAS WAIKESA

Lae:	Numapo AJ
2019:	15th October

CRIMINAL LAW – Particular Offence – Wilful Murder – Brutal and vicious attack - Maximum Penalty – Sentencing Discretion – Prevalence of the Offence – Deterrence – Life imprisonment.

Held:

(i)	The Court is required to asses carefully all the relevant factors and circumstances of the case before deciding the type of punishment that fits the crime. 

(ii)	Each case is determined by its own peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances, gravity of the offence and the prevalence of the particular offence.  All these have to be properly weighed up and balanced out in deciding the appropriate sentence.

(iii)	The right to life is a fundamental right guaranteed under section 35 of the Constitution. This means that no person has the right to take away another person’s life. Any person who commits the act of wilful murder must be severely punished.

(iv)	The Court has a duty to ensure that a person who takes away the life of another person is appropriately punished with the type of punishment that has a punitive effect that not only deters the offender from re-offending but also to deter others from committing the same offence. 

(v)	Prisoners each and severally sentenced to Life Imprisonment to be served concurrently.

Cases Cited:

The State v Iori Veraga (2005) N2921.  
Goli Golu –v- The State [1979] PNGLR 653
Hure Hane –v- The State [1984] PNGLR 105
Steven Loke Ume and Others –v- The State (2006) SC 806,
Thress Kumbamong v The State [2008] SC 1017.
Manu Kovi v The State (2005) SC 789
Lawrence Simbe v The State [1994] PNGLR 38.
State v Imbuni [1997] PGNC 26; N1558
The State v Tumu Luna [2002] N2205 
The State v Kivini (2004) N2576
Joseph Enn v The State (2004) SC 738
Tony Amunu Api v The State (2001) SC 684
The State v Andrew Keake N2003
State v Manga [2017] PGNC 285; N6998
State v Ben Sumakot Simbu CR. No. 1413 of 2002 (Unreported)

Counsel:

J. Done, for the State
J. Huekwahin, for the Defence

DECISION ON SENTENCE

15th October, 2019

1.      NUMAPO AJ: This is a decision on sentence after the Prisoners each and severally were found guilty on two (2) counts of Wilful Murder contrary to section 299 (1) of the Criminal Code after a lengthy trial.  The Prisoners; Sakarias Givikain, Ilau Gubutau, Barnabas Buka, Sam Buka, Giamkisi Naptali, Naiman Yana, Francis Joe, Matarap Yassam and Nicko Thomas Waikesa were each and severally convicted accordingly.

A.	BRIEF FACTS

2.   On the 20th of December 2014 at Galawo village, Mumeng, Bulolo District, Morobe Province the Prisoners armed themselves with bushknives, axes, fishing spears, sticks and stones and ambushed and killed two persons namely; Robert Nema and Andrew Tamai suspecting both to be rascals (criminals).  They then chopped off the heads of the two deceaseds and cut up their bodies into pieces and threw them into the Watut River.  The body parts were discovered couple of days later by villagers living downstream.

B.	THE LAW

Section 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.    

3.     State further invoked section 7 (1) (c) of the Criminal Code given a number of offenders involved.

Section 7 	Principal Offenders

(1)	“When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: -
(a)	  every person who actually does the act or makes the omission that constitute   the offence; 
(b)	 every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and 
(c)	 every person who aids another person in committing the offence; and
(d)	 any person who counsels or procures any other person to commit the offence. 

C.	APPROPRIATE PENALTY 

4.     There is no mathematical formula in deciding what should be the appropriate penalty. The Court is required to asses carefully all the relevant factors and circumstances of the case before deciding the type of punishment that fits the crime.  Each case is determined by its own peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances and the gravity of the offence.  The prevalence of the particular offence is also a consideration.  All these have to be properly weighed up and balanced out in deciding the appropriate sentence.  See: The State v Iori Veraga (2005) N2921.  

5.     Every case is decided on its own merits as no two cases are the same. See: Lawrence Simbe v The State [1994] PNGLR 38.  An appropriate sentence is determined from the factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances.  I list them below:

(a)	  Aggravating factors

(i)	It was a mob attack
(ii)	The attack was brutal and vicious
(iii)	Offensive weapons were used
(iv)	Strong desire to kill
(v)	Deceaseds were decapitated and their bodies chopped up and thrown into the river.
(vi)	No respect to the sanctity of life.

(b)	    Mitigating factors
         
(i)	Prisoners expressed remorse
(ii)	Compensation was paid
(iii)	They have no prior convictions. 
 
There is no extenuating circumstances.

D.	MAXIMUM PENALTY

6.     The maximum penalty for Wilful Murder is death pursuant to section 299 (2) of the Criminal Code.  However, case precedents have settled that maximum penalty is not always mandatory as the Court does have a wider sentencing discretion under section 19 of the Criminal Code to impose a lesser sentence in place of a maximum sentence.  The famous case of Goli Golu –v- The State [1979] PNGLR 653; that has now become trite law, held that the maximum penalty is reserved for the worst type offence of wilful murder.  A later Supreme Court decision in Hure Hane –v- The State [1984] PNGLR 105 sets out five instances that warrant the maximum penalty as follows:

(i)	     Any murder done in furtherance of theft,

(ii)	 Any murder by shooting or causing an explosive,

(iii)	Any murder done in the course of or for purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody,

(iv)	Any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting, and

(v)	  In the case of a person who was a prisoner at the time when he did or was a party to a murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prisoner so acting.

7.     In the recent case of Steven Loke Ume and Others –v- The State (2006) SC 806, the Supreme Court further outlined seven instances which guaranteed the maximum penalty:

1.	The killing of a child, younger 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 a 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. policemen, 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.	Hire to kill or contract killing.

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

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

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

8.      To be considered the worst type of wilful murder the factual circumstances of the case must fall under the Hure Hane (supra) or the Steven Ume Loke (supra) categories to attract the maximum penalty prescribed under section 299 (2) of the Criminal Code which is death penalty.  However, I hold the view that those circumstances are not mandatory guidelines and the Court is not obliged to impose a death penalty once one or more of these circumstances are present as sentencing is and always remains a discretionary matter for the Court and therefore, no amount of guidelines or tariffs set would take away that judicial discretion.  See: Thress Kumbamong v The State [2008] SC 1017.

9.      Since the re-introduction of the death penalty in 1991 through the Criminal Code Amendment Act 1991 (Act No. 25 of 1991) a number of death sentences imposed by the Courts were commuted to life sentence following successful appeals on sentence whilst some are still pending appeal in the Supreme Court.  In the meantime, the Government has not yet determined through legislation what method or procedures it would use to carry out the execution.

E.	SENTENCING GUIDELINES

10.      Both Counsels submitted that in determining the appropriate sentence for the present case the Court should be guided by the sentencing tariffs on Wilful Murder set out in the much celebrated case of Manu Kovi v The State (2005) SC 789 (herein after referred to as the Manu Kovi Guidelines). The guidelines are set out below:

CATEGORY	WILFUL MURDER	
Category 1 	15 – 20 years	
Plea
Ordinary cases
Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning
Minimum force used
Absence of strong intent to do GBH.	
Category 2	20 – 30 years	
Trial or Plea
Mitigating factors with aggravating factors	Pre-planned. Vicious attack
Weapons used
Strong desire to kill	
Category 3	Life Imprisonment	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack
Strong desire to do GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences of violence committed.	
Category 4 	Death	
Worst Case – Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack
Brutal killing, in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human life.	

F.	STATE ON SENTENCE

11.     Mr Done for the State submitted that the nature and the factual circumstances of this present case placed it squarely under the category of worst type offence.  The aggravating factors clearly outweigh the mitigating factors.  The Prisoners had a strong desire to kill and their actions were calculated and deliberate to end the lives of two harmless and innocent people.  They used bushknives, axes, fishing spears, grass knives, catapults, and stones and viciously attacked the two Deceaseds.  After killing the Deceaseds they decapitated both and chopped their bodies up into pieces and threw them into the river.  This was a senseless killing of a worst kind with complete disrespect of a human life.  They have no respect for the rule of law that guarantees a person the right to life. This case is far more serious than that of Hure Hane (supra) and Steven Loke Ume (supra).

12.     Mr Done submitted that the special aggravating factor in this case is that this was the most gruesome murder of a worst type for which the appropriate penalty is a death penalty under section 299 (2) of the Criminal Code.  Counsel submitted that the Court imposes the death penalty on each of the Prisoners for the heinous crime they committed.

G.	DEFENCE ON SENTENCE

13.    Mr Huekwahin for the Defence conceded that this case falls into the category of worst type offence but submitted that although, the maximum penalty for the charge of Wilful Murder is death pursuant to section 299 (2) of the Criminal Code, it is not automatic or mandatory that the Court should impose the maximum penalty.  The Court has a wider sentencing discretion under section 19 of the Criminal Code to consider imposing a lesser sentence in place of the prescribed maximum penalty.  Death sentence is the ultimate penalty under our current laws and should only be used in very extreme cases of worst type offence.  Counsel referred the Court to the ruling in Goli Golu (supra) and asked the Court to impose a lesser penalty instead of the death penalty.

14.     Mr Huekwahin further submitted that the Court takes into account the personal circumstances of each of the Prisoners.  They are all married with families and all are subsistence farmers living in the village.  Their relatives paid a compensation of K20, 000.00 and 2 pigs and some food stuff to the relatives of the two Deceased persons as a token of sorrow and deep regret for what they did.  They have expressed genuine remorse and are sorry for what they did and have apologized for their wrong-doing.  These are all reflected in the Prisoner’s Pre-Sentence Report.

15.     Counsel submitted that the Prisoners be given a determinate term of years in place of a maximum penalty or life imprisonment.  He submitted that this would give the Prisoners the opportunity to rehabilitate and reformed themselves.

 H.	CASE AUTHORITES

16.     Counsels cited some case precedence to assist the Court in deciding the appropriate sentence for purposes of consistency. I refer to some of them below:

1.	State v Imbuni [1997] PGNC 26; N1558

17.     This was a triple murder case in which three people were ambushed and hacked to death in a cold blood killing up in Enga Province. The Prisoners were spared the death penalty and were given life imprisonment to be served concurrently taking into account the factual circumstances of the case and consideration of section 19 of the Code.

2.	The State v Tumu Luna [2002] N2205 

18.     The prisoner shot his brother point blank with a shotgun and he died instantly. He pleaded guilty to wilful murder and was sentenced to life imprisonment.

3.	The State v Kivini (2004) N2576

19.     The prisoner chopped off his sister neck because he was upset that no one looked after him when he was sick.  He was sentenced to life imprisonment.

4.	Joseph Enn v The State (2004) SC 738

20.     During a gathering of the clansmen to resolve a dispute and man and a woman fought.  Clansmen stopped the fight and the deceased went and sat down.  The Appellant walked up to her and chopped her neck. He was sentenced to 20 years.

5.	Tony Amunu Api v The State (2001) SC 684

21.      A high school student was brutally murdered.  He suffered multiple fractures to his skull and abrasions on the right shoulder and abdomen and also suffered injuries.  The Supreme Court upheld the decision of the National Court which sentenced him to life.

6.	The State v Andrew Keake N2003

22.     The prisoner was convicted for shooting his cousin brother at close range.  He was sentenced to 20 years.

7.	State v Manga [2017] PGNC 285; N6998

23.     The offender was convicted after a trial on one count of wilful murder.  The offender stabbed the deceased in a clubhouse.  He was sentenced to 24 years.

8.	State v Ben Sumakot Simbu CR. No. 1413 of 2002 (Unreported)

24.     The accused was sentenced to death after he was found guilty of a double murder of a woman and her 2 year old son.

I.	DECISION

25.      To the Prisoners, I say this to you all;

On the 20th December 2014 you all, in a mob attack, ambushed and killed two innocent and harmless individuals namely; Robert Nema from Eastern Highlands Province and Andrew Tamai from East New Britain Province at Galawo village, Mumeng, Bulolo District after suspecting them to be rascals (criminals).  You then chopped off their heads and cut up their bodies and threw them into the Watut River and in doing so you denied the two Deceaseds a decent burial.  One of you held up the chopped off hand of one of the Deceaseds and waved to the crowd with it and made a mockery out of it.  This is a despicable act with complete disregard for a human life. 

26.     I agreed with Counsels that this was a vicious mob attack of a worst kind.  You ambushed and killed the two Deceaseds using offensive weapons such as bushknives, axes and fishing spears to inflict injuries.  The use of the offensive weapons shows that you all had a strong desire to kill.  Two different persons were killed in a single act.  

27.     The State lawyer described this as a heinous crime of the worst type and asked the Court to impose the death penalty on each of you. Your Defence lawyer also agreed that this was a case that falls into the category of worst type offence but asked the Court to exercise its discretion under section 19 of the Code and impose a lesser sentence with a determinate term of imprisonment on both counts instead of a death penalty or life imprisonment. 

28.     The right to life is a fundamental right guaranteed under section 35 of the Constitution.  This means that no person has the right to take away another person’s life.  Any person who takes away the life of another person must be severely punished.  You all have no right to take away the lives of the two Deceaseds as you did. 

29.     You told the Court that you killed the two Deceaseds because you suspected them to be rascals (criminals) but the Court found no evidence of that which means that you have killed two innocent people with no reason at all and ended their lives prematurely without any lawful justification. 

30.     There were many of you involved in attacking the Deceaseds and clearly you outnumbered the two of them, so why didn’t you just grabbed them and hand them over to the Police if you suspected both to be rascals instead of taking the law into your own hands by killing them.  This was not a retaliatory attack and you didn’t have to fight to defend yourselves and in doing so killed the two Deceaseds.  This was almost a cold blood killing.

31.     I read the Pre-Sentence Report prepared by the Probation Office on each of you and noted that you all have expressed remorse and are genuinely sorry for what each of you did.  I also note that you all have families and some of you have young children back in the village and are concern about their welfare and well-being. You should have thought about all these before doing what you did.  Your relatives back in the village paid a sum of K20,000 plus 2 pigs and some food to the relatives of the two Deceaseds to make peace with them.  But as we all know, no amount of remorse or compensation will bring back a life.  I also note that you all are first-time offenders and have no prior convictions.  These are mitigating factors in your favour.  I must tell you however, that the mitigating factors are rendered insignificant by the gravity of the offence.

32.     The increasing number of homicide cases in recent times showed that our towns, cities and even villages, are no longer safe for our people.  Law and order has taken the centre stage in every discussions nowadays.  The government is concern about the deteriorating law and order situation in the country.  As citizens of this country, it is incumbent upon all of us to ensure that our communities are safe and free from all unlawful activities.  We must all respect the rule of law.

33.     The Court has a duty to ensure that a person who takes away the life of another person is appropriately punished with a type of punishment that has a punitive effect so that it would not only deter the offender himself from re-offending but also to deter others from committing the same offence.

34.     Whilst the death penalty appears to me to be the most appropriate penalty in your case, after considering your personal circumstances and the fact that you all are first-time offenders with no prior convictions, I will impose a penalty which, in my view, fits the crime you committed in place of a death penalty prescribed under section 299 (2) of the Criminal Code.

H.	SENTENCE

35.    I sentenced each and every one of you to Life Imprisonment on each count of Wilful Murder to be served concurrently.

Orders Accordingly

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