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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 546 of 2000
THE STATE
JACKSON BAIROM (No. 2)
WEWAK: KANDAKASI, J.
2003: 6th and 10th June
CRIMINAL LAW – Sentence – Wilful murder – Repeated attacks on an older man with piece of wood – Stabbing deceased’s wife with knife and attempting also to attack deceased daughter – Parents stepping in the way of prisoner wishing to marry their daughter cause of attack – Prisoner with one prior conviction for manslaughter for killing his wife – Conviction after a trial – Ss.19 and 299 of the Criminal Code – Sentence of life imprisonment imposed.
Papua New Guinean Cases Cited:
Goli Golu v. The State [1979] PNGLR 653.
Ure Hane v The State [1984] PNGLR 105.
Avia Aihi No 3 v The State [1982] PNGLR 92.
The State v. Ian Napoleon Setep (unreported judgement) N1478
The State v. Andrew Keake (unreported judgement) N2079
The State v. Godfrey Edwin Ahupa (unreported judgement) N1789.
The State v. Theo Raphael (No.2) (14/02/02) N2180
The State v. Christopher Kutau & Cosmos Kutau Kittiwal (No.2) (24/05/02) N2249.
Counsel:
Mr. M. Ruari for the State
Mr. G. Korei for the Prisoner
10th June 2003
KANDAKASI J: On the 4th of June 2003, this Court found you guilty on one charge of wilful murder contrary to s. 299 of the Criminal Code. The Court then adjourned for submissions to Friday the 6th on your request. Both you and the State’s oral submissions were received on the 6th as scheduled. The submissions followed your own address on sentence, where you told the Court not to give you the death penalty but a term of years. The Court then reserved its ruling to today. This is the Court’s decision on sentence.
Relevant Facts
The relevant facts are set out fully in the judgement on verdict. For sentencing however, I note a number of factors are important. Firstly, you have been already convicted for manslaughter for the killing of your wife. Sometime after that, you befriended the deceased’s daughter, Daisy. Her parents appear to have not approved your befriending their daughter and it seems there was some mediation over that. You claimed that following the mediation, you went to get "the result from the parents whether you would be allowed to marry their daughter or not and depending on the answer, a repayment of what you spent on her or how much bride price should you pay".
Secondly, upon arrival at the deceased’s house you did not ask the parents the appropriate questions to get the "result" you claimed you went to receive from them. Instead, you called for Daisy about three times. Daisy’s mother responded to you in a question form, "Is Daisy your wife?" This indicated that you were not welcomed. So you should have left but you did not.
Thirdly, despite the negative response and even after the deceased pulled back into his house its rope ladder, you climbed into his house through one of the posts. Once inside the house, you started to attack the family starting with the deceased, then his wife followed by Daisy.
Fourthly, you used a piece of sawn timber 40 centimetres in length and 3 x 2 cm in size. You hit the deceased several times with the timber starting with his head, then his neck area and all over his body. You even pulled on his testicles. The deceased fell down on the floor and immediately died from the injuries you inflicted upon him.
Fifthly, you proceeded to attack the deceased’s wife with a knife. You started with attempting to stab her in her virginal area. After stabbing her, you turned to Daisy and tried to attack her as well but she managed to run away. Going by these series of attacks, it is clear that you acted out what you said to the deceased’s family, "your lives are in my hands".
Finally, the deceased was an older person than you were. This means you were fighting against an unequal. The same is true in the case of you attacking the deceased’s wife and Daisy. Assessing from your attitude in Court and your past record, I not that you are a dangerous and an aggressive man. So I have no doubt that you overpowered the deceased and his family. They called for help, according to Daisy but help did not come and you got away after having done the damage.
Address on Sentence
There is no argument that you have a prior conviction for manslaughter for killing your wife. Presently, you are about 42 years old and have mainly lived a subsistence dwelling. Grade 6 is the maximum level of formal education you have reached. You have a brother but he is hardly home. So you are the only one looking after your mother.
You have 7 children of your own, aged between 17 –3 years old with 3 of them in community school. In your own address, you quoted the words, "For there is not a just man upon the earth, that doeth good, and sinneth not." purportedly from Ecclesiastes 7:7. The correct verse is verse 20.
Your lawyer highlighted your personal and family background and submitted on your behalf that I should not impose the maximum sentence of death. Instead, he argued for a term of imprisonment starting at 13 years. He argued that, your case is not the worst kind of wilful murder, which could attract the imposition of the maximum penalty. He then referred to the Supreme Court judgements in Goli Golu v. The State [1979] PNGLR 653; Ure Hane v The State [1984] PNGLR 105, and Avia Aihi No 3 v The State [1982] PNGLR 92. In these cases, the Supreme Court made it clear that the maximum penalty should be reserved for the worst kind of offence under consideration.
On the other hand, the State stressed the circumstances in which you committed this offence and the fact that you have a prior conviction for manslaughter, which is another serious offence. In so doing, the State emphasised the fact that, you attacked the deceased and his family in their house and that you attacked all of them. It was also pointed out that you committed a very serious offence. Counsel for the State did not suggest any particular sentence.
The Offence
The offence of wilful murder is prescribed by s.299 of the Criminal Code as follows:
"1. Subject to 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 ...
Section 299 of the Code is subject to the provisions of section 19 of the same legislation. That section reads:-
"(1) In the construction of this Code, it is to be taken, except when it is otherwise expressly provided –
(aa) person liable to death may be sentenced to imprisonment for life or for any shorter term."
Given the wording of this provision, sentences other than death have been imposed for persons found guilty of wilful murder as in
your case. In Goli Golu v. The State (supra), Mr. Goli Golu was a well-educated man with an unblemished record. He was convicted
and sentenced to the then maximum sentence of life imprisonment for killing the deceased in the precincts of the courthouse at Kwikila
in the Central Province. On the day of the killing, two opposing factions or clans attended the Kwikila Court for court proceedings
against some of them, following a riot between the two groups over land dispute. On the day of the hearing, extra police were deployed
to maintain maximum security and peace. Despite of the police presence, the appellant got in with a knife undetected and then stabbed
the deceased. He did not personally have any grudges against the deceased other than being a member of the opposing clan. The trial
Judge placed emphasis on the prevalence or rising trend of killings taking place within the Court precincts which showed total disrespect
for the Court. The Supreme Court on appeal reduced the sentence to 13 years on the basis that the sentence imposed by the National
Court was disproportionate to the circumstances of the crime.
Similar views were taken in Ure Hane v The State (supra) and Avia Aihi No 3 v The State (supra). The cases also make it clear that it is difficult to classify what is a worse case of wilful murder and what is not. My brother, Justice Sevua spoke of that difficulty in The State v. Ian Napoleon Setep (unreported judgement) N1478 in these terms:
"Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, in my view, to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."
On my part, I had regard to the possible categories of wilful murder in The State v. Andrew Keake (unreported judgement) N2079. In that context, I had regard to the Goli Golu (supra), Ure Hane (supra) and Avia Aihi (N0.3) (supra) cases and noted that the law had since changed. This was particularly in terms of increasing the penalty from life imprisonment to death.
I then noted and do likewise here that Bredmeyer J categorized the possible wilful murder cases in this way at pp. 107 - 109:
"1. Wilful murder committed in the cause of committing a theft, robbery, a break and enter, or a rape.
I also cited with approval what His Honour said at page 109 of his judgement in these terms:
"I consider that if a wilful murder falls into any one of the above categories, a Judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but must seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the trial judge then must consider the seriousness of the particular murder in the case of seriousness of the murders in that category."
A case in my view that comes somewhat closer to your case, is that of The State v. Godfrey Edwin Ahupa (unreported judgement) N1789. In that case, my brother Justice Kirriwom imposed a sentence of life imprisonment against the prisoner who wilfully murdered the deceased in that case in cold blood. There was no apparent motive for the killing. The prisoner gave a number of blows to the deceased’s head. He had a prior conviction and sentence for manslaughter. His Honour noted and I endorse that such:
"senseless and merciless killings are becoming quite prevalent. Courts have been accused of being over lenient in their sentences in some of those cases that deserved nothing but condemnation.
...
But when you look at all these cases of deliberate and calculated murders, whether they involved pre-planning or not, whether they were carried out swiftly and quickly or slowly and in the most gruesome and barbaric or agonising manner, or whether the victims are gunned down, axed, knife or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated."
In The State v. Andrew Keake (supra), I reviewed most of the authorities as at the time of judgement. I then found that the case before me did not fall in the "worst type case". There, I took the view that killing someone in a payback killing or a group attack or committing the offence in the course of an armed robbery of a dwelling house at night using a firearm or a hold up on a highway is worse. But that did not remove the fact that taking away a human life is a serious offence which has to be met with a serve penalty, unless very good mitigating factors exist.
Having regard to all of the above, I imposed a sentence of 35 years in The State v. Theo Raphael (No.2) (14/02/02) N2180. In that case, the prisoner killed the deceased in a one on one attack over a land dispute. The prisoner wanted to eliminate a competing claim of ownership put up by the deceased. He attacked him with spears and a bush knife and used the spears repeatedly to kill the deceased. He had no prior convictions and was a relatively young man.
Subsequently, in The State v. Christopher Kutau & Cosmos Kutau Kittiwal (No.2) (24/05/02) N2249, here in Wewak, I imposed a sentence of 40 years with light labour for one of them who was older than the other. That was despite that person having had a good history of dedicate services to the State. The killing in that case was by two persons acting in concert. I found the prisoners decided to attack the deceased who was not armed because of an attack on the prisoners by the deceased and his friends. They used a sword knife to kill the deceased. They both had no prior convictions. As such, they were first time offenders.
Your Case
In your case, you have a prior conviction for killing your wife. Therefore as already observed, you are a violent person. In this case, you used a piece of wood to hit the deceased on his head more than once. The medical evidence confirms the deceased died from the injuries he received to his head. You also attacked him in his neck area and other parts of his body.
You then also attacked the deceased’s wife using a knife. You attempt to stab her in her virginal area. The deceased’s wife sustained a number of injuries to other parts of her body. Not only that, you also attacked their daughter, Daisy, who you say was your girlfriend.
The attack took place in the deceased’s own house. You had every opportunity not to enter the deceased’s house but did enter the house uninvited. I found this was deliberately to effect your intent to kill the deceased and his family. This is also confirmed by the number of attacks on the deceased and later turning upon the deceased’s wife and his daughter.
There is absolutely no factor in your mitigation. You have not taken any step toward restoring relations and at least make the wrong right customarily because of the lack of any such evidence. You pleaded not guilty and that forced the daughter of the deceased to come and relief the anguish of seeing her father being attacked and killed before her eyes in her house. She could well be blaming herself for the death of her father over her friendship with you.
There is no evidence of what the deceased did that warranted the attack on him and his family. The attack took place in the deceased’s house. A man’s house is his castle and is his place of security when there appear to be danger all around outside. Attacking a man and his family in his home is in my view, a very serious matter. The penalty for such attacks must be severe enough to serve both as a personal deterrence for the offender and generally for other would be offenders.
Given these factors, I am of the view that your case falls in the most serious case of wilful murder. It is almost on all fours with the case of The State v. Godfrey Edwin Ahupa (supra). But it is a step worse than that case because of the attack on not only the deceased but also his wife and daughter and more importantly, the attacking and the killing took place in the deceased’s house.
Finally, I have given some thought to what you meant when you quoted Ecclesiastes 7: 20. Going literally by what this text says, it is simply saying no one is just as all have sinned. I take it that by this, you are saying you are no worse than any other person. If that is what you are saying, then that ignores the fact that no one has killed his wife and then killed the father of another woman he was trying to get married to, attack also her mother and the lady he was interested in as you have done here. This shows your mind set. I am not surprised because you did not say sorry for what you have done once the Court found you guilty. Instead, you openly rejected the verdict and talked about an appeal against the decision on the verdict.
I have been seriously considering the death penalty but am persuaded not to. This is mainly because, you did not use a dangerous weapon such as a gun, axe or a bush knife. Also you did not committee the offence in the pursuance of another offence, such as armed robbery or rape. Falling short of the maximum, I consider in the circumstances of your case, a sentence of life imprisonment appropriate.
Whilst in prison, I suggest that you read the well-known text in the Bible, John 3:16 and Romans 6:23. If you read these and other
texts in the Bible, you will find that every wrong that we as humans commit attracts the penalty of death, unless you accept the
gift of God, Jesus Christ and his death on the cross and you truly repent of your sins and turn back to God. Whether, you do that
or not, is a matter between you and your God. I hope that you will change your attitude, accept some responsibility and make it right
with God before it is too late. I firmly believe that the good Lord is returning to earth to take his good people home to Heaven.
If you want to be part of that, you better change and be ready to meet Him. For unlike in this case, where you are spared the death
penalty there will be no escape from the wrath of God, death.
______________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor
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