national court of justice

THE STATE

v

OKATA TALANGAHIN
(No.2)

wewak: kandakasi j

15 and 21 June 2004

CRIMINAL LAW – Sentence – Killing unborn child – Offence committed in course of attempted armed rape of 9 months old pregnant mother – Strong kick to the abdomen area causing victim to fall – Dragging victim whilst on the ground and on her stomach for some distance – Severe cuts to mothers body with bush knife – Dead child delivered same day of attack – Offence committed in breach of de facto trust – First time offender – Conviction after a trial – No contest worse case of murder – Life imprisonment imposed – Criminal Code ss. 347(1). 

Facts

The accused was charged on a count of killing an unborn child by attacking the child's mother.

The mother was nine (9) months pregnant when the accused severely attacked her by first striking her on the stomach, dragging her and stabbing her with a knife. The unborn child died from injuries sustained as a result of the severe assault on the mother.
The accused was found guilty and convicted.

Held

1.	That the circumstances surrounding the commission of the crime were aggravating and therefore the maximum penalty of life imprisonment with hard labour is warranted.

2.	Accused sentenced to life imprisonment with hard labour.

Papua New Guinea cases cited
David Laim Bawai v The State (01/04/04) SC471.
Kepa Wenege v The State (01/04/04)SCR 35 of 2003.
Mary Bomai Michael v The State (01/04/04) SC737.
Simbe v The State [1994] PNGLR 38.
The State v Joseph Ulakua (23/05/02) N2240.
The State v Kevin Anis and Martin Ningigan (07/04/03) N2360.
The State v Laura (No. 2) [1988-89] PNGLR 98.
The State v Tom Keroi Gurua & Ors (11/12/02) N2312.
The State v Tony Pandau Hahuahori (No 2) (21/02/02) N2186.

Counsel
J. Wala, for the State. 
L. Siminji, for the accused. 

21 June 2004

Kandakasi j. On 11 June the Court found you guilty after a trial on a charge of killing an unborn child on 11 August 2000, by attacking the deceased mother Evelyn Samson, at Mamalimbi in the Wosera District of this Province. 

The Relevant Facts 

The facts are fully set out in the judgment on verdict (The State v. Okata Talagahin (No.1) delivered on 11th this instant. It is therefore not necessary to recite them except in so far as they are relevant and are necessary for the purposes of determining an appropriate sentence for you. Accordingly, I first note that you are related to the victims of your offence by virtue of your sister being married to a cousin brother of Evelyn's husband. Because of that, you used to go back and forth from Evelyn's village. Hence, when you set out to and did in fact commit the offence, you did so in breach of a de facto trust. You also knew that Evelyn was then 9 months pregnant. 

At the time of your attack on her, Evelyn was in her coffee garden picking coffee with her older children not expecting the attack on her by you. You went from behind her and started attacking her by threatening her with a bush knife, which you placed on her neck. She struggled with you and you kicked her so hard on her abdomen area, causing her to go out of breath temporarily and then fall on the ground. You then dragged and pulled her for some distance down a hill whilst she was on her stomach. The medical evidence confirmed fresh multiple bruising to her pregnant stomach. These facts suggest an intention to kill the unborn child.

After having so pulled and dragged her, you then pulled your zipper down and tried to rape her. The medical report confirms no sexual penetration but it does note that there were dirt with soil in the victim's anus and vaginal areas. You could have raped her but for her shouting and screaming for help, which alerted Raphael Samson who came to her rescue. On seeing Raphael, you fled from the scene after having cut Evelyn several times on both her hands. The medical report confirms knife wound injuries to both of her hands, a 24cm in length and 7cm in depth cut with no tendons involved and active bleeding to the right hand. The wound to the left hand was a wound of 7cm length and 5cm depth cut with no tendon involved.

Eventually, Evelyn was taken to the Maprik Health Centre where she received medical treatment and delivered a dead male child, which was otherwise a full term baby with no abnormality. She was found to be in severe pain on admission due to the deep knife wounds and moderate labour pain. She was also found soaked in blood clot on her body and clothes from the deep knife wounds. The medical report confirms the death of the child was attributable to the attack on the mother earlier that day. The medical report also confirms that the death of the child was fresh which occurred within some 24 hours due to no respiratory or breathing in the womb as an end result of a trauma. Evelyn sustained serious knife wound injuries to both her hands which required suturing and appropriate other treatments. The hospital discharged her on 18 August 2000.

I note that there is no contest from you that, if Evelyn was not taken to the hospital, she stood the risk of death herself as she carried a dead child in her womb. This was additional to death that might have resulted from a loss of blood from the knife wounds you caused her.

Submission of the Parties

The Court administered your allocutus and you left it all to your lawyer. Your lawyer did not say anything about your background. It is clear however, that you are a first offender in the absence of the State alleging any prior convictions. In terms of your age, you appear to be past the age of 20 years old. Therefore, you are an adult person and as such, you were in a position to appreciate that what you set out to do was wrong, but did it any way.

There is no contest between the parties that this is a worse case of murder. Given that, you did not initially argue for a determinate term of years, thereby conceding to an imposition of the prescribed maximum of life imprisonment. You changed that later to ask for a determinate term of years in reply to the State's Submissions. The State argued for a sentence between 20 years and life imprisonment. Counsel for the State did not provide any particular reason for making that submission.

The Offence and Sentencing Tariffs 

The Charge against you was under s 300 (1) (b) of the Criminal Code, which reads as follows:

"300.	Murder.

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—
…

(b)	if death was caused by means of an act—

(i)	done in the prosecution of an unlawful purpose; and

(ii)	of such a nature as to be likely to endanger human life;
…
Penalty: Subject to Section 19, imprisonment for life."

It is clear that Parliament prescribed the maximum sentence of life imprisonment for the offence of murder regardless of the circumstances giving rise to the commission of the offence. This offence is therefore very serious, something the Courts have acknowledged repeatedly. In the exercise of the Court's sentencing discretion also provided for in the penalty provision of this offence, the National Court initially came up with a set of guidelines in the case of in The State v. Laura No. 2 [1988-89] PNGLR 98 in terms of the following:

(a)	where there is a guilty plea with no special aggravating factors, a sentence of six years;

(b)	a sentence of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

(c)	on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

In that case, the prisoner pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He received a sentence of eight years, as there were neither nor any special factors in aggravation or in mitigation. The Supreme Court in, Simbe v. The State [1994] PNGLR 38, adopted the above guidelines and applied them. That was in the context of an appeal against a sentence of 14 years following a plea of guilty to a charge of murder.

Since then, there has been an increase in sentence for murder cases. In The State v Joseph Ulakua, [23/05/02] N2240, for example, I imposed a sentence of 20 years. In that case, the prisoner killed his wife after she had ran away from him, after allegedly having an affair with some men in the prisoner's own village. He pleaded guilty to the charge and had no prior conviction.

Earlier, Sevua J., imposed on a guilty plea a sentence of 30 years against two prisoners. In that case, the prisoners with others killed the driver of a motor vehicle who failed to stop at a roadblock they set up to rob the motor vehicles and their passengers on the Sepik Highway. Subsequently, I dealt with their co-accused and the person who pulled the trigger in The State v Tony Pandau Hahuahori (No 2) [21/02/02] N2186, I imposed the maximum sentence of life imprisonment.

My brother, Justice Kirriwom, in The State v Tom Keroi Gurua & Ors., [11/12/02] N2312, imposed a sentence of 50 years and 20 years imprisonment against the prisoners. The 50 years was against the gunmen who shot the deceased who had gone to the aid of his daughter whom those men tried to abduct. The prisoners were respectively aged 18 and 20 years old. 

In David Laim Bawai v. The State, [01/04/04] SC471 one of the prisoners, David Laim Bawai, appealed against his sentence of 50 years. The Supreme Court of which I was a member dismissed his appeal on the basis that the sentence he received was too lenient. The Court was of the view that, he should have been indicted with wilful murder and receive the maximum penalty of death given the seriousness of the offence and the increase in these types of offences. 

In, The State v. Kevin Anis and Martin Ningigan, [07/04/03] N2360 I imposed a sentence of 37 years against the prisoners. In that case, the prisoners were part of a gang that carried out an armed hold up on the Sepik Highway with intend to rob the motorist on the highway. They set out to execute the planned robbery but it went bad resulting in the killing of a passenger and the wounding of another. This was after a trial. They were not the gunman doing the killing and wounding. In so doing, I observed that:

"This clearly shows a trend of increased sentences, especially in cases where a person is killed in the course of pursuing another unlawful purpose. Likewise, there is an increase in the kind of sentences that are being presently imposed against armed robbers. This is reflective of the fact that there is so much killing, almost every day in the course of other unlawful purposes such as armed robberies. This is disastrous for our country. The adverse effects of such violent crimes as murder, armed robbery and rape on the country as a whole, has been adequately expressed in numerous judgments of both this and the Supreme Courts,… It is not necessary to repeat them. Sufficient only to say that society is saying enough is enough and that such offenders should be dealt with severely."

The Supreme Court in Kepa Wenege v. The State, [01/04/04] SCR 35, of 2003 agreed and endorsed these observations. I note also that the Supreme Court quashed the conviction and sentence in the The State v. Kevin Anis and Martin Ningigan, [07/04/03] N2360, purely on the technical ground of dealing with a charge of murder and grievous bodily harm at the same time.

Further, I said in The State v. Joseph Ulakua, (23/05/02) N2240 with the subsequent agreement and endorsement of the Supreme Court in Kepa Wenege v. The State (supra).

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other person's life without any lawful excuse or one that is not permitted by law. The onus is therefore …on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes, of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of the Constitution and you find that, that presumption is only in relation to guilt. Once guilt is established or admitted, the presumption no longer exists."

The Supreme Court repeated these views in David Laim Bawai v The State [01/04/04] SC 471, in these terms at pages 12-13:

"We have attempted to review and set new guidelines and tariffs in Simon Kama v The State (SCRA 34 of 2001), a decision, which we had delivered a while ago today. We reiterate the view that the unlawful taking away of another person's life is very serious. As such, the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence. The onus is on an offender to establish a case for leniency. Only when an offender is able to do that, should the Court consider the sentencing guidelines as modified in Simon Kama v State (supra)."

The offence of rape and murder and such other serious offences are being committed in greater numbers and often, in association or in the pursuance of other serious offences, as in your case. The country or the community has had enough of these types of crime and are continuously calling for tougher penalties. This requires the Courts to appropriately, respond with serious sterner penalties to meet that increase in the offences.

Recently, the Supreme Court in Mary Bomai Michael v. The State [01/04/04] SC 737, endorsed these observations in these terms:

"The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands; however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community's concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as pay back. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, willful murder and armed robbery."

Sentence in Your Case

Noting these sentencing trend and tariffs, I now turn to your case. I find that you correctly accept the fact that, the circumstances in which you committed this offence places it in the worse category of murder. You, therefore, correctly do not make out a case for a sentence lower than the prescribed maximum. The only basis you find to argue for a determinate term of years is the submission of the State. The State's submission as noted asks for a sentence between 20 years and life imprisonment. I point out however, that, that submission does not replace the serious aggravating circumstances in which you committed this offence. 

The State's submission is seriously flawed, in my view, and a serious neglect in counsel's duty. This amounts to a serious compromising of the Public Prosecutor's responsibilities despite repeated calls against such compromises as late as the judgment of the Supreme Court in David Laim Bawai v. The State [01/04/04] SC 471. Counsel for the State has not provided nor has he referred to any factor in your mitigation that warrants a submission in those terms. All there is, is a casual and careless attitude to the gravity of the circumstances in which you committed this offence.

The circumstances once again are that you knew the deceased mother was pregnant. She was unsuspectingly working in her coffee garden. You suddenly attacked her to commit another serious offence, the offence of rape against her. This in itself was very serious because the mother and victim was pregnant and due to deliver any time. You were so intent on your satisfying your sexual craving that you cared less about the conditions your victim was in. Despite knowing that she was pregnant, you kicked her so hard on her pregnant stomach. That caused her to go out of breath for a while. Then you dragged and pulled her for some distance and were in the process of trying to rape her when you were disturbed. If you were not disturbed, I find that, you would have achieved your unlawful purpose. These facts suggest an intention to kill the unborn child. As such, you are fortunate that you were not indicted for wilful murder and thereby face the risk of death penalty.

In the process of your attack on the mother, you caused her a lot of physical injuries by cutting her with a bush knife and by dragging her, while she was on the ground on her pregnant stomach. This put her in a lot of pain and suffering requiring hospitalization and grieve over the unwarranted death of the deceased child. Further, you committed this offence in breach of a de facto trust as a person related to her by marriage. Furthermore, you were a grown up man and so therefore you were in a position to appreciate the fact that what you set out to do was wrong, but you did it anyway.

In these circumstances, only the prescribed maximum of life imprisonment is appropriate and called for. I therefore impose it against you. You shall serve that sentence in hard labour at the Boram Correction Service. A warrant of commitment shall issue in those terms.

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Public Solicitor.