N9445

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1411 OF 2017

THE STATE

V

BINAS WAPI

Kokopo:  Tusais AJ
2021:  07th September
2022: 14th February

CRIMINAL LAW – Sentence - Wilful murder – Criminal Code section 299A (1) – Killing of a child – Very serious aggravating factors – Case falls into worst category of wilful murder – Life imprisonment -

Cases Cited

Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
 Ure Hane vs The State [1984] PNGLR 105
Steven Loke Ume v State (2006) SC836
Manu Koivi (2005) SC789
Rex Lialu v The State [1990] PNGLR 487
Tonny Imunu Api v State (2001) SC684

Counsel

Mr L Rangan, for the State
Ms C Pulapula, for the Accused

DECISION ON SENTENCE
14th February, 2022
1.	TUSAIS AJ:	The prisoner was convicted after a trial on a charge of wilful murder, contrary to s. 299 (1) of the Criminal Code Act, Ch. 262 (the Code) This is the Court’s ruling on sentence. 

2.	 Eleven-year-old Noel Ari was found dead with his forehead very badly bashed in and most of his brain matter missing from the skull cavity. There was also a deep cut on the young boy’s right foot. He was found lying under freshly cut cocoa branches not far from his residence. This brutal killing occurred at Tabuna Coconut and Cocoa plantation located at Bitapaka LLG in Kokopo District of East New Britain Province.

3.	Court found that between 4.00 and 5.00 pm on 9th August 2017, the prisoner went to the house of the victim and asked his father, Ari Kuntonio, to borrow a guitar. Mr. Kuntonio told the accused that he did not have a guitar. The victim was also there together with his mother and 11-year-old twin-brother, Joel Ari.  Before this date the prisoner had never once visited their residence.

4.	 After finding out that Ari Kuntonio did not have a guitar, the prisoner walked off. Ari Kuntonio also left his house to go to work and his two sons went into the cocoa and coconut plantation to cut cocoa branches to make their toys. Noel went ahead and climbed onto a cocoa tree, with a knife in his hand to cut a cocoa branch. As Joel was trying to climb a nearby cocoa tree, he saw the prisoner suddenly appear and go towards the cocoa tree that Noel was on. When he reached it, he swung his bush knife at Noel and cut his right foot.

5.	Joel was shocked to see this so he fled back to his house and informed his mother and they ran back together to the scene. Inside the cocoa garden they found out that Noel was already dead. His skull was fractured and there were brain tissues lying beside him on the ground. The deceased child was taken to the morgue the next day. It was found through a post-mortem examination that he died due to a severe brain injury caused by a skull fracture.

6.	The offender is 39 years old and comes from Entipi village, Maprik district in East Sepik and Rai Coast in Madang Province. He is not married but has an adopted son aged 11 years old. He comes from a family of seven (7) children and he is the second born child in the family. Both of his parents have died. He only completed Grade 1 at the Sonoma Adventist Community School in 1991 and did not continue his education. At the time of the offence, he was employed as a labourer at the Tabuna Plantation.

4.	The issue that the court has to decide is the sentence to impose on the prisoner. I adjourned this case for sentence when the maximum penalty was death. That is no longer the case since the amendment done to the Criminal Code recently. The maximum sentence of death was repealed and in its place life sentence substituted as the maximum penalty. 

5.	The facts and circumstances in which crimes are committed, vary from case to case. That is why sentences are imposed based on the facts of each case. Homicide cases including wilful murder, murder and manslaughter are no different. Killings are committed for many different reasons and in varied circumstances. In the case of Rex Lialu v The State [1990] PNGLR 487 at 497 Kapi DCJ (as he then was) made this observation in a manslaughter case. 

'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about. as stated in R v Phillips [1985] CR APP (RS) 235 at 237.”

6.	So, what sentence should this court hand down for this offence? Maximum sentences are usually reserved for the most serious and worst type of any crime. Avia Aihi v The State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105 all restate this principle of law. I consider that this crime easily falls into the most serious category of wilful murder cases. It is a heinous crime.

7.	The case is aggravated by the following factors. First is that the victim was a young child. The Supreme Court in the case of Steven Loke Ume v State (2006) SC 836 listed the types of wilful murders considered to be the worst types that could attract  imposition of the maximum sentence of death. At the top of that list is the killing of a child, a young or old person or a person under some disability needing protection. The key words in that category are ‘persons needing protection’. Children, old people and disabled people need protection and care from the community. Courts have a duty to protect these vulnerable people, especially old people and young children who are increasingly being subjected to cruel and inhuman acts of extreme violence. Children everywhere in the world are normally loved and cherished. It is after all, a natural part of life and humanity. Children represent hope for the future and continuity of their family line, community and the wider world. While they are young and innocent, they also give a great deal of joy and happiness to their parents, siblings and loved ones. That is what makes this particular killing so tragic. A young innocent school boy with unrealised potential, had his young life snuffed out for no reason at all by a cruel, heartless and psychopathic man. 

8.	I also consider as aggravating, the manner of death. This killing was done in a very brutal and vicious manner. The child was first cut with a bush knife on his foot causing him to fall off the cocoa tree he had climbed. Between the short space of time from when the deceased’s twin brother fled until he brought his mother back, the prisoner bashed the little boys head in. How he did it is not known because no one saw him and he has not admitted or explained. But there is photographic evidence and witness statements of brain matter found scattered in the cocoa garden from the tree the child was on, to the location the body was hidden. 

9.	This case is also made serious because it was premeditated and planned. There is evidence that when the prisoner arrived at Ari Kuntonio’s house he was starring intently or very strongly at the victim. The motive for the killing was attributed to an argument that the prisoner’s elder brother had with Ari Kuntonio, the father of the victim. Ari lived and worked as a security guard at Tabuna coconut and cocoa plantation. He testified that on the day his son was killed he was at his house when the prisoner arrived between 4 and 5 in the afternoon. Mr Wapi asked Ari Kuntonio to borrow his guitar. Ari said he did not own one and did not even know how to play guitar. The twin boys Joel and Noel, then aged 11 years, were also at home after returning from school. Ari gave evidence that Binas Wapi walked around his house and was starring or looking intently at his son Noel.  Binas Wapi did not sit. He was standing all the time and Ari said his eyes when he looked at Noel were ‘scary’ and he felt afraid. Ari left the twins to go to work at the company fermentary located some distance away, marked as between Kerevat LLG Chambers and Junction to NARI which is about one kilometer. Three minutes after he arrived at the fermentery, he heard that his son Noel had been killed. 

10.	Ari Kuntonio when asked about the reason why his son was killed said this. On 06th August 2017 the accused elder brother Moses, went to his house and said some threatening words to him. Earlier Moses’ daughter had run off with another man to Maprik in East Sepik and Moses seemed to hold Ari Kuntonio responsible. He said to Ari in pidgin language “Tambuna ya yumi stap. Yu stap na lukim” translated into English language … “We are all living at Tambuna. You just wait and see” Ari thought that Moses meant to hurt or even kill him and replied back that he was from Yangoru which is a different district in East Sepik and he had nothing to do with Moses daughter running off. 

11.	The prisoner has not shown any remorse. He declined to say anything during allocutus. He appeared to be unmoved and did not display any emotion during his appearances in court before me. 

12.	In considering the appropriate penalty to impose in this case, I take into account the submissions made by both counsels on sentence. Defence lawyer asked the court to take into account two things which were favourable to the prisoner. First is that he had no previous conviction and so was a first-time offender. The second factor was that he had acted alone and not in a group. Counsel submitted that this case fell within the second category of cases listed in the case of State v Manu Kovi (2005) SC 789 and so a sentence between 20 to 30 years was appropriate. I must say that the mitigating factors as submitted are rendered insignificant by the very serious aggravating factors in this case.

13.	The State prosecutor submitted that this particular killing fell into the third category in the case of State v Manu Koivi (2005) SC789 and so life sentence is appropriate. Those factors in Manu Kovi relating to categories of seriousness in wilful murder are now redundant since the recent abolishing of the death penalty as the maximum sentence for wilful murder. Both lawyers made their submissions when the death penalty was still applicable. 

14.	This is a worst type of wilful murder case. The facts are similar to the wilful murder case reported in Tonny Imunu Api v State (2001) SC684. The appellant was convicted for the killing of a 14 year old school boy doing grade 6. In dismissing his appeal against life sentence the Supreme Court said …

“We are of the opinion that this was a worst type of wilful murder. A 14-year-old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view.”

15.	I agree with the views expressed in Apis’ case (supra). The killing in this case is also very bizarre and chilling. His actions were monstrous. He acted like a wild animal gone berserk in such a frenzied attack that the child’s skull was bashed wide open and brain matter were scattered all over the area that he was killed. The prisoner had no respect for human life. The offender is an evil man, and a grave danger to society. He must never be released back into the community. I therefore have no hesitation in imposing the maximum penalty for wilful murder as amended recently, and that is life in prison.

16.     The order of this court is that the prisoner is sentenced to Life Imprisonment. 

Sentence accordingly.
________________________________________________________________
Office of the Public Prosecutor:  Lawyers for the State
Office of the Public Solicitor:	 Lawyers for the Accused