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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
THE STATE
KEPAK LANGA
Wabag : Jalina J
2003 : 26th September
CRIMINAL LAW – Particular offences – Wilful murder – Sentence – Deceased chopped several times on forehead with bush knives and axes – Conviction following trial – Deceased killed in ambush attack – Whether this wilful murder amongst worst category of wilful murders – Wilful murder through ambush attack within ambit of worst type wilful murder cases – Wilful murder and other homicide cases prevalent – Need for deterrence - Maximum penalty of death appropriate – Criminal Code s.299(2).
Papua New Guinea cases cited:
Goli Golu – v- The State [1979] PNGLR 653
Avia Aihi –v- The State (No.3) [1982] PNGLR 92.
Ure Hane –v- The State [1984] PNGLR 105.
The State –v- The Yapes Paege & Relya Tanda [1994] PNGLR 65.
The State –v- Arua Maraga Hariki, An unreported National Court Judgement N2332 dated February 2003.
The State –v- Tumu Luna, An unreported judgment N2205 of the National Court in Wabag and dated 20th May 2002.
The State –v- Kiko Ipai, An unreported National Court judgment N2268 dated 19th June 2002.
The State –v- Sole Nare, an unreported National Court judgment in Cr 148/02 dated 25th May 2001.
The State –v- Madiroto [1997] PNGLR 95.
The State –v- Alois Erebebe and anor An unreported National Court judgement in Goroka in September 2003
Counsel:
S. Kesno for the State
P. N’dranoh for the Prisoner
JALINA J: This prisoner was charged with wilfully murdering one John Daniel at Imi Village, in the Enga Province on 18th November 2002. The deceased was chopped several times on the head by the prisoner and others in an ambush attack on a group of people the deceased was travelling with.
As the nature of the injuries sustained by the deceased is relevant on sentence I summarise the Medical Report of Dr. Jeffrey Tore below::
"FINDINGS:
External – A young highlands male of 28 years, lying dead on the trolley. Had multiple lacerations to the face. Blood all over the face and head.
RIGHT FOREHEAD:
Laceration x 2
One measured about 10 cm in length and 2 cm in width. The frontal bone was broken (fractured). Brain tissue could also be seen through the wound.
The other one measured about 4 cm in length and 1 cm in width.
There was a laceration on the nose also. The laceration measured about 6 cm in length and 2 cm in width. The nasal bone was fractured (broken). The left maxillary bone was also fractured and the base of the brain could be seen through the fractured bones.
BRAIN
Left Hemisphere lacerated more on the frontal area."
The cause of death was found to be due to traumatic injury to the head.
The prisoner had raised a defence of alibi whereby in both his record of interview with the police as well as in his oral evidence, he said that he was at Sangurap Village in Wabag with his elder brother Ikio Langa and Village Court Magistrate Wasaka Napali on the day in question. The Court however, found the State to have successfully negatived his defence and convicted him of the offence charged. He now appears before me for sentence.
The maximum penalty under s.299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but Parliament amended Subsection (2) and replaced life imprisonment with the death penalty.
It is well settled in this jurisdiction that the maximum penalty should be reserved for the most serious instances of the offence. In other words, the maximum penalty should be imposed only in cases properly categorized as "worst type" cases (see Goli Golu – v- The State [1979] PNGLR 653, Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 and Ure Hane –v- The State [1987] PNGLR 105.
The state prosecutor Mr. Kesno has submitted that the maximum death penalty be imposed in this case because of a number of aggravating factors which brings it within the ambit of "worst category" or worst type" wilful murder cases. The aggravating factors he submitted were:
(1) Cold blooded ambush attack on a father with his three children and two other relatives.
(2) This was a payback killing by the prisoner and the deceased’s enemy tribe the Diupin upon the deceased and his family members from the Kandaonkin tribe.
(3) The intention was to kill as many persons as possible. This was evidenced by;
- (a) the attempted shooting of Pastor Daniel Napu by Wanpis Neo. The intention failed because the gun failed to fire.
- (b) The shooting of Lasson Daniel with a home made gun by the prisoner. This was an attempted murder. The gun pellets struck Lasson Daniel on his left shoulder. If Larson had been shot in the chest instead of the left shoulder he could have also been killed.
(4) There were multiple injuries to the deceased’s head and face. According to the post mortem report there were three lacerations to the forehead and one to the nose. The skull was fractured resulting in brain tissues lying outside the wounds.
He further submitted that the death penalty should be imposed as a general deterrence to other would be offenders in Enga Province. The right to life was guaranteed under Section 35 of the Constitution however in this province there appeared to be a lack of respect for the sanctity of life. On top of that attitude was the lack of respect for the rule of law. This wilful murder was committed in an area that has experienced tribal fights with modern weapons on a large scale resulting in widespread destruction of properties and loss of lives. This killing related to that tribal fight. This killing showed that the value of human life in Enga appeared to be cheap. He referred to the comments of Woods, J. (as he then was) in The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65 which involved an ambush killing in the Enga Province where His Honor said at page 68:
"The circumstance of this case and of so many others the Court has seen over the years suggests a very casual attitude to life. There are many cases of the deliberate setting out in gangs to kill someone from an enemy line or to ambush someone"
That case, Mr. Kesno submitted, was decided 9 years ago. Unfortunately Enga has not changed much. These types of killing were still continuing, even taking place in Wabag Town, the administrative capital of the province. Similar concerns were echoed in the case of The State –v- Arua Maraga Hariki (Unreported National Court judgement N2332 of 3 February 2003) by Salika J. In that case the prisoner was convicted of the wilful murder of two persons. For the first count the prisoner was sentenced to life imprisonment and for the second count the maximum penalty of death was imposed. He referred to pages 4 and 5 of his judgment where His Honour said:
"Over the years I have tried numerous cases of murder. It appears to me that killings are becoming more daring without any fear and respect for the sanctity of life. Life has become so cheap in this country to live. Exposure to Christianity and education has had little impact in some communities in PNG. Tribal fighting, payback killing and ethnic clashes are not unusual occurrences.
These types of killing must stop. The Courts have been trying to stop these types of killing through passing of higher sentence but imposing higher sentences has not achieved much. It is time to consider the killing in this case to be worthy of a death sentence."
Mr. Kesno went on and submitted that the concerns of Salika J. in Arua Hariki’s case were applicable to the Enga province. Ambush killings and pay back killings by a gang of people were becoming a common occurrence here. Despite exposure to Christianity and civilization for over half a century, ambush and pay back killings are still happening. Lack of sophistication in this day and age should no longer be an excuse. General deterrence should be of paramount consideration. The imposition of the death penalty would send a strong warning to the people of Enga that tribal fights and payback killings must stop. The imposition of the death penalty would cause people to have respect for the rule of law and sanctity of life as guaranteed under the Constitution to every person in Papua New Guinea.
In his statement on the allocutus the prisoner maintained his alibi and thus his innocence but as I said in my judgment on the verdict, he had raised a false alibi. I am not at all disturbed by his stand because of the overwhelming evidence from those who come from the same village who saw him take part in the attack on the group of people the deceased was walking with.
Mr. N’dranoh in pleading for leniency for his client, has submitted that the maximum penalty be not imposed as this particular wilful murder was not among the "worst type" of wilful murders. He relied on a number of cases such as Ure Hane –v- The Stae (supra), Avia Aihi –v- The State (supra), The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65 and The State –v- Tumu Luna, An unreported judgment N2205 of the National Court in Wabag dated 20th May 2002. In that case the prisoner killed the deceased with a single shot from a homemade shotgun at point blank range even though the deceased pleaded with the prisoner that they were brothers and that the prisoner should leave him alone. The State Prosecutor requested the maximum death penalty but I imposed a sentence of life imprisonment as I considered that the case was not among the "worst type" wilful murder cases.
Other cases he referred to were cases I have heard in Wabag and imposed life sentences for wilful murder. One was The State –v- Kiko Ipai, an unreported National Court judgment N2268 dated 19th June 2002 where the prisoner and others chased the deceased after a fight, caught him, chopped his body and threw his body in the Porgera River. The other was the case of The State –v- Sole Nare, an un reported National Court judgment in Cr 148/02 and dated 25th May 2001 where the deceased was attacked with a knife and killed during a fight that erupted over land compensation payments by the Porgera Joint Venture Company in Porgera. He also referred to wilful murders categorized by Bredmeyer J. (as he then was) in Ure Hane’s case and submitted that this case does not fall under any of those categories and as such a sentence other than the maximum sentence be imposed. As the wilful murders categorized by Bredmeyer J. were not the opinion of the supreme court but only his personal opinion, I with respect, do not propose to follow it.
Apart from the prisoner’s personal antecedents which included his lack of prior conviction, his lack of formal education and being the youngest and the only one of his mother’s surviving children, Mr. N’dranoh submitted that this court exercise its sentencing discretion under s. 19 of the Criminal Code and impose a penalty other than the maximum penalty of death because he was not the only one involved in the killing, and that this prisoner should be considered as an individual in his own circumstances. With regard to him being the only one being brought before the court whilst others are still at large, I am of the view that the law will deal with them at the appropriate time once they are caught and brought before it.
Mr. N’dranoh has also tendered in mitigation of sentence, a letter dated 17th September 2003 to the Public Solicitor and jointly signed by leaders of the Kandaunkin and Liapin tribes indicating that the respective tribes have reconciled and made peace on 15th September 2003 and that the Kandaundins have given back the land that they occupied during the tribal fight over the death of Tondei Langa and that the Liapin tribe would pay compensation for such death. The Kandaunkin tribe would also build houses for the Liapins.
Notwithstanding the lack of response by Mr. Kesno for the State to the terms of the letter and the inference that may be drawn from it, I commend both tribes for their willingness to forgive each other and reconcile. Other warring tribes should follow the good example set by the Kandaunkins, the Liapins and Tinalapins.
I however, do not attach much weight to it as the killing of the deceased did not occur during actual fighting between the Kandaunkin and the Deopin tribesmen but occurred a year later in November 2002 after actual fighting had stopped. Further more, as I have said, whilst I commend both tribes for finally reconciling and making peace, such actions including the payment of compensation should not prevent the law from taking its course to punish offenders who commit serious crimes.
For the court to release an offender who commits a serious crime such as wilful murder on account of compensation and reconciliation outside of the process sanctioned by law for dealing with serious crimes, could in my view, encourage people into thinking that they can pay their way out of prison through payment of compensation and thereby continue to flout the law. I therefore do not consider that compensation under the Criminal Law (Compensation) Act 1991 is appropriate in this case bearing in mind that wilful murder is a serious crime.
In deciding the sentence I should impose, I am mindful of Goli Golu’s case, Avia Aihi’s case and Ure Hane’s case which establish that when the issue of whether or not the maximum penalty for wilful murder should be imposed arises, the court should impose such a penalty for "worst type" wilful murder cases only.
There have been a number of cases where the death penalty were considered including the ones I myself have heard in Wabag and Maraga Hariki’s case which came before Salika, J. but two other cases where their Honours fell short of imposing the death penalty come to mind. One was The State –v- Yapes Paege & Relya Tanda (supra). In that case the deceased was chopped to death in an ambush situation. He was attacked when he went out of his house to investigate some disturbances. His Honour Woods, J. imposed a life sentence instead of the maximum death penalty because the State Prosecutor made submissions against the imposition of such a penalty.
The other case was The State –v- Madiroto [1997] PNGLR 95. In that case the prisoner pleaded guilty to wilfully murdering an old woman in a most tragic manner. There the prisoner dragged the deceased out of her house in her garden, burnt the house, belted her with his hands and pulled her down to a creek nearby. He then threw her face down on to some stones. After that he took some stones from the creek and began stoning her on her head. Later he squeezed her throat and at the same time pushed her head into the water in the creek and kept it under water until she died. He then released her. So one can imagine the slow, agonizing and painful death the deceased went through starting from the time she was continuously stoned on her head and later through drowning. His Honour Sevua, J. imposed a sentence of life imprisonment instead of the maximum death penalty because the State Prosecutor did not ask for such a penalty.
Returning to the case now before me, I do not regard the prisoner’s prior good record and lack of prior convictions as well as other personal antecedents put to me by defence counsel sufficient to prevent a stiff sentence as such factors to my mind lose their significance in the face of a very serious crime as wilful murder. In my view, it is the state of mind of the attacker at the particular time that matters. Although Mr. N'dranoh appeared to concede that violent offences such as wilful murder, murder, manslaughter and grievous bodily harm are prevalent in this province, he nevertheless submitted that because of the mitigating factors he has referred to, the maximum death penalty be not imposed in this case.
I am however, concerned about the lack of respect for the sanctity of human life and the prevalence of attacks on human beings with guns, axes and bush knives in this province as is clear from the number of wilful murder cases I have dealt with in Wabag which are referred to earlier in this judgment. The majority of cases on the crimes list in the National Court in Wabag are homicide cases such as wilful murder, murder and manslaughter as well grievous bodily harm and attempted murder which involve violent attacks on another person with dangerous weapons. I consider that the sentence I impose should be one that would act as a deterrent to others. I am therefore in full agreement with the forceful submission of Mr. Kesno for the State. They, with respect, reflect my own views.
I however, beg to differ with Mr. Kesno that this was a payback killing. I cannot see how this was a payback killing because the deceased who was from the Kandaunkin tribe was not solely attacked by members of the Deopin tribe but by the prisoner initially who came from the same Kandaunkin tribe as the deceased. The motive for the prisoner leading the Deopin tribesmen in an attack against his own tribesmen and killing the deceased when the Deopins appear to have been blamed for the death of his brother Tondei Langa shall never be known except by God who sees and knows everything that a person does even when no one is watching. So this was a cold blooded killing of a fellow tribesman.
Another aspect of this case is the modus operandi of the prisoner and his colleagues in putting their intention into effect. They waited in ambush for Pastor Daniel Napu and his three (3) children and when they arrived with two (2) other men at the place the prisoner and his colleagues were hiding they were attacked by surprise with guns, bushknives and axes. The deceased and members of his group therefore had no chance of defending themselves. So again this was a killing of a defenceless man in cold blood.
As indicated earlier in Yapes Paege & Rlya Tanda’s case Woods, J. decided against the death penalty in an ambush killing because the state prosecutor made submissions against His Honour imposing such a penalty. In the present case however, Mr. Kesno has submitted to the contrary. He has submitted that I impose such a penalty so I should seriously consider his submissions.
So in the present case, considering the circumstances of the killing which was an ambush killing carried out in cold blood, I am of the view that ambush killings such as the present one must be categorised as among the "worst type" cases. Just recently in Goroka in The State –v- Alois Erebebe and anor Batari, J. imposed life sentences instead of death sentences on the prisoners who ambushed and killed nine (9) people the majority of whom were members of a single family. I do not have the benefit of His Honour’s judgment to determine why the court’s sentencing discretion was exercised against imposition of the death penalty but to my mind, with respect, if ambush killing in a situation where the victims were unaware and therefore unable to defend themselves cannot be categorised among the "worst type" cases, then what kind of killing would warrant the death penalty?
If ambush killings of unsuspecting victims cannot be considered to be among the "worst type" wilful murder cases then the courts would forever be reluctant and the intention of the people of Papua New Guinea through their elected representatives in prescribing the death penalty through the Criminal Code would have little or no effect at all on serious crimes such as wilful murder.
The sentence I therefore consider appropriate in all the circumstances of this case is that the prisoner is sentenced to death in accordance with law.
I advise that if the prisoner is not happy with the sentence he has the right to appeal to the Supreme Court within 40 days from today.
____________________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor
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