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State v Hamau [1999] PGNC 114; N1862 (20 May 1999)

N1862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 161/98, CR 162/98
CR 163/98, CR 164 /98
CR 165/98 & CR 166/98

THE STATE

v

HOSEA HAMAU
HAMAU BULU
CASPAR YAGOMA
GIDION POLOS
PHILIP HAMAU

Kavieng: Jalina J
1999: 18 & 20 May

Criminal law –Sentence – Wilful Murder – Deceased attacked with knife and axe – whether worst wilful murder – death through attack with knife and axe not amongst worst category of wilful murders – maximum penalty not appropriate – sentence of 25 years appropriate –Criminal Code Act Ch 262 s.299 (2)

Cases Cited:
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92

N.T. Sios for the State
S. Madana for the Prisoners

SENTENCE

20 May 1999

Jalina J. These prisoners were convicted following a trial for wilful murder. The prisoner Hose Hamau was also convicted for unlawfully wounding one. Ellison Bulukiraga during the fight which resulted in death of one Jack Malisa Tau.

The facts which has been established by the State to my satisfaction by evidence are that at about 7pm on 18 December 1997 the Village Committee man Mr. Susuat Wasmande arranged a village moot called "wanbel kot" to settle a dispute between the deceased and his wife on the one side and the accused Hamau Bulu and his wife and their children Hosea Hamau and Philip Hamau on the other. However the accuseds Hosea Hamau, Philip Hamau, Caspar Yagoma and Gidion Polos were not present when the hearing started.

The "wanbel kot" was over pigs owned by the deceased and his wife allegedly destroying the Hamau family's garden and the Hamau family with the accused Gidion Polos killing the pigs and eating them or selling them at the market. The deceased and his wife were not happy and lodged a complaint with the Village Committee man Mr Susuat Wasmande.

In the course of the hearing the deceased confirmed his complaint and his witness Ellison Bulukiraga who had checked the garden allegedly damaged by the deceased's pigs said that no evidence of damage could be found. The accused Hosea Hamau came out from somewhere in the dark and started arguing with the deceased. The argument became heated and they were about to exchange punches but were stopped by the Committee man and others. The deceased went sat down with his wife on a bed and the accused Hosea Hamau kept arguing. In an effort to prevent the accused Hosea Hamau and the deceased fighting the deceased wife Neri Pata, who is related to the accused Hosea Hamau, stood between her husband and Hosea Hamau. Hosea Hamau then pushed the deceased wife resulting in her falling close where her husband (the deceased) was sitting.

Provoked by what had happened to his wife, the deceased started fighting with Hosea Hamau. It was alleged that as they were fighting, Hosea Hamau started moving towards the dark and then the accused Philip Hamau came out from nowhere with an axe and hit the deceased on the back of hit neck and the deceased fell to the ground and then the accused Hamau Bulu went and held the deceased down with the deceased facing the ground. Then the accused Caspar Yagoma went and held the deceased on both legs pinning him to the ground. As the deceased was helpless in that position the accused Hosea Hamau got a knife and started stabbing the deceased on various parts of the body. While this was going on the accused Gidion Polos was standing guard and fighting off would be helpless. The deceased was severely injured from the attacks with the axe and the knife and he died while he was rushed to Namatanai Hospital.

The maximum penalty under s 299(2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but by Act No. 25 of 1991 Parliament amended subsection (2) and replaced life imprisonment with the death penalty. Since the amendment by Parliament, the National Court in Papua New Guinea has imposed the death penalty in two cases. In the State v Ombusu Doherty J imposed the death penalty on a Popondetta man for wilful murder but was quashed by the Supreme Court on appeal on technical grounds. In the State v Steven Loke Uma and 2 ors the appellant's appeal against Woods, J's decision in Kimbe on 7th February 1997 to impose the death penalty is pending before the Supreme Court. So judges should not feel reluctant to impose the death penalty in an appropriate case.

At the time when life imprisonment was the maximum penalty for wilful murder the Supreme Court held in Ure Hane v The State [1984] PNGLR 1105 that "when considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so far as the law allows, categorise those "worst type" cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offenders".

In earlier cases the principle that the maximum penalty should be reserved for the worst type of case was noted. For instance in Goli Golu v The State [1979] PNGLR 653 the Supreme Court said;

"In sentencing for wilful murder, the maximum penalty for life imprisonment should be reserved for the most serious instances of life offence."

On Aiva Aihi v The State (No.3) [1982] PNGLR the Supreme Court said at p 92:

"The basic sentencing principle of proportionality to the offence applies when considering sentences of life imprisonment, which, ass the maximum punishment, should be imposed only in cases properly categorised as "worst type" cases".

In their statements on the allocutus, three of them namely Gidion Polos Caspar Yagoma and Philip Hamau sought to be released on good behaviour bond or probation. The other two (2) did not expressly mention good behaviour bond or probation but in the way they spoke they wanted a non custodial sentence. I must sat at the outset that wilful murder is the most serious of the homicide offences in the statute books and rarely would someone not receive a custodial sentence. I am not inclined to impose a non-custodial sentence.

They are first offenders and are simple villagers. Some of them have said sorry for what they have done. Their ages age from 16 to 60 years. Philip Hamau is aged 16 years, Hosea Hamau 21 years Hamau Bulu 60 years, Caspar Yagoma 27 years and Gidion Polos about 28 years. All of them are married with children except for Philip Hamau who is single.

They have spoken of most of their properties including houses and food gardens having been destroyed by relatives of the deceased. A child has also died through starvation when the deceased relatives prevented the child's mother and others from getting food. Philip Hamau's mother and sister were assaulted so badly that they ended up in hospital. All these will be taken into account on sentence.

Although the prisoner's lawyer Mr Madana did not make submissions to me on the issue of non-legal provocation as a mitigating factor, non-legal provocation has always been taken into account as a mitigating factor and I propose to do when deciding the ultimate sentence I should impose.

I now have to decide whether I should impose the maximum penalty which is death or impose a lesser sentence which can range from a term of years to life imprisonment.
Is this wilful murder among wilful murders that can be described as among the "worst type" of wilful murders?

In Ure Hane v The State (supra) Bredmeyer, J lists at pages 107-108 eight (8) kinds of wilful murders as falling among the worst or most serious category. They include;

(1) wilful murder done in the course of committing a theft, a robbery, a break and enter or a rape;

(2) a wilful murder of a policemen or a prison warder acting in the execution of his duty;

(3) a wilful murder done in the curse of or the purpose of resisting, avoiding or preventing lawful arrest or preventing lawful arrest or in effecting or assisting in an escape from lawful custody;

(4) a wilful murder of a person in police or court custody;

(5) a payback killing of a completely innocent man;

(6) any second or third murder;

(7) any murder where the offender has a long record of violence such that he is likely to commit such offences in future;

(8) a wilful murder of the Governor General, the Prime Minister, the Leader of the Opposition, the Speaker of the Parliament, the Chief Justice, a Bishop, a visiting Prime minister, the Pope or other V.I.Ps.

I have analysed the facts and find that the present case does not fall under any of the above categories. For my part I would consider wilful murder with a shotgun, killing someone and then chopping the body to pieces, shooting and cutting the body to pieces, killing someone and burning the body to be among the worst category of wilful murders which could warrant the imposition of the maximum penalty. The present case does not fall under any my categories of wilful murders so it does not warrant the imposition of the maximum penalty which is death.

In all circumstances of this case and taking into account their expression of remorse, their lack of prior convictions, provocation in the non-legal sentence but bearing in mind that a trial was heard which shows that they sought to hide their involvement in this crime, I consider a sentence of twenty five (25) years imprisonment to be appropriate which I so impose on each prisoner. I deduct from that sentence the one (1) year and five (5) months they have been in custody since 19th December 1997 which leaves twenty three (23 ) and seven(7) months. For the deceased's relatives taking the law into their own hands and destroying these prisoners properties including food gardens, houses, pigs and chickens as well as causing death of a child through starvation and the hospitalisation of Philip Hamau's mother and sister, I deduct three years(3) and seven (7) months. This leaves twenty years each of them have to serve.

In view of his advanced age I order that the prisoner Hamau Bulu's sentence be in light labour. In view of his young age I also order that the prisoner Philip Hamau's sentence be in light labour. The other three (3) prisoners shall serve their sentences in hard labour.

For the unlawful wounding charge, I impose a sentence of one (1) year on Hosea Hamau from the three (3) years prescribed by Parliament under s.322 of the Criminal Code Act. In view of the commission of this offence being in close proximity as to time and circumstance, I order that this sentence be served concurrently with the sentence for wilful murder.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoners: Madana Lawyers