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State v Mealo [2004] PGNC 70; N2708 (17 August 2004)

N2708

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO: 2020 OF 2004

THE STATE

-v-

YAMOLA MEALO

Mendi: Lenalia, J.
2004: 10, 17 August

CRIMINAL LAW – Murder – Plea of Guilty – Sentence – Criminal Code s.300, Ch. No. 262.

CRIMINAL LAW – Murder – Guilty plea – Factors for consideration – Killing not worse type – Terms of years considered – Sentence.

Cases cited:

Lawrence Simbe -v- The State [1994] PNGLR 38
Goli Golu -v- The State [1979] PNGLR 653
Ure Hane -v- The State [1984] PNGLR 105

Counsel:

S.Kesno, for the State
P. Kapi, for the Accused

17th August 2004

LENALIA, J. The accused pleaded guilty to one count of murder charging him that on the 1st day of March 2004 at Mugumapu village in Ialibu District, he murdered one Annita Benny contrary to s. 300 of the Criminal Code.

The brief facts of this case reveals a very sad ending of a young woman whose life was taken away prematurely at your hands. The accused had been married to the sister of the victim until his wife passed away due to illness with some suggestion that the accused may have as well being responsible for and had contributed to his wife’s death. After the death of the accused wife, the accused started to suggest to his mother in-law that he wanted to marry one of her daughters who were by than already married to different men at different villages.

Because of the accused’s plan to marry anyone of the two sisters of his deceased’s wife, the accused consistently pestered his mother in-law with his evil plans to marry anyone of her two remaining daughters. The two sisters of the deceased, Ralu Moke and Anita Benny (deceased victim of this case) were both by then already married women with children of their own husbands. In case of Ralu Moke, she is married to a man from Pangia while in the case of the deceased victim, although she was living with Councillor Mapo Nandape, she too was already married to a man from the Kagua District.

The accused’s mother in-law’s name in this case is Kendelame Moke and she would be about 50 years old and the facts show that she stood her ground whenever the accused brought the issues into discussion when she consistently told the accused that, she could not allow or give in to the accused suggestion to marry either Ralu or Anita because they were already lawfully married to their husbands by custom and what more, I could assume that, the idea would have caused bitter conflicts between the accused, the two women who were already married, their husbands and their extended family relatives. Even Councillor Mapo Nandape was of the same view.

An incredible fact appears from the facts is that after the accused’s wife died, and after his unsuccessful bid to marry anyone of the two daughters of the old woman, the accused developed sexual relationship with the old woman (his mother in-law). Kendelame reveals in her statement that, the accused treated her like his wife by having sexual intercourse with her and they even used the same house as a husband and wife. In the course of that relationship, the accused often told Kendelame openly that if the two of them (Kendelame and Councillor Mape Nandope) did not give him (accused) Anita in order for him to marry her, he would kill Anita Benny.

In the morning on the date of the killing, the accused went away to his village at Muli and left his children. When he woke up that morning, he told his mother in law that, he was to go and live his children in his village because he had planned to kill Anita that day. Then came 4 pm that afternoon, the accused came to the garden where the deceased and her mother were. When he arrived at the garden, the accused asked the victim and her mother if they had reached a decision already.

An argument immediately developed between the trio and soon afterwards, the accused started to fight with the victim and her mother. The accused lifted his axe and aimed at the victim’s head. Somehow, she managed to duck to avoid the first blow. The victim and her mother tried to pull the axe off the accused. Having realized that he had almost been over-powered, gave an assurance to the victim and her mother that he was not going to kill Anita but instead would only rape her. Having heard that, Kendelame let go of the accused and took the victim’s baby away from the victim. She took a few steps away from the accused and the victim giving her back to the victim and accused because she did not want to see the accused penetrating her daughter.

After a short conversation, Kendelame looked back to the accused and Anita and saw that the accused had pushed or pulled the victim’s skirt and petty coat up towards her waist. When Kendelame looked up to the mountains, she momentarily looked at the pair again and this time she saw the accused lifted his axe up and cut the victim on one side of her neck. The victim fell down to the ground and having seen this Kendelame through herself down over the victim’s body. The accused managed to pull Kendelame away and once more delivered another hard blow or cut on the other side of the victim’s neck. Anita died instantly.

After chopping the victim down, the accused told the victim’s mother that, the reason why he killed Anita was because, he had wanted to marry Anita but they never wanted to give her to him. That he had planned well for this killing and he had achieved his aim. The accused also issued threats against Councillor Mapo Nandape saying he would also kill the Councillor for not wanting to give the victim for him (accused) to wife. At the end of her statement to the police, the victim’s mother said something like this:

"To conclude, I must say that the suspect Yamola Mealo is not a good in-law of mine. He married my daughter Wala Moke and murdered her, then threatens and had sexual intercourse with me, and now had murdered my other daughter Anita. He is not a human-being but an animal".

Kendelame expressed her concern that way by referring to the sexual relationship which had developed between the accused and his 50 years old mother in-law and between the death of the accused’s wife and the time period in which the accused unsuccessfully tried to marry the victim and her other sister up to the date he took the life of the victim away.

On his address to the Court on sentence, the accused said, he is sorry for what he did, but that the reason why he kill his sister in-law was because, he had looked after her when she was small and when she got married, she never let the accused know. That this was the reason why he killed Anita.

The State agrees with the defence submission that, this case does not fell into the worse category of murder cases as discussed in Goli Golu -v- The State [1979] PNGLR 653 and Ure Hane -v- The State [1984] PNGLR 105. Despite what counsel say, one thing so clear, this was a brutal killing of an unarmed woman because of lust and it falls almost into a family setting situation. It seems to the Court from the facts that the accused was really desperate in his attempts to marry the deceased or even her other sister.

In his desperation he started to have a sexual relationship with the mother of the victim. Kendelame described the accused behaviour well in the conclusion of her statement given to the police. In many societies in Papua New Guinea, people do treat and consider such behaviour with abhorrence, contempt and even condemn it as disgusting. The accused behaviour can be best described in the Pidgin language as "Man ia I tanim pellet gut turu long tambu leva blong em". (the accused turned around and in his desperation, he commenced having sex with his beloved mother in-law).

On perusal of the facts of the instant case, there seems to be there are no special mitigating circumstances. At the present time there is a great increase in the general lawlessness right throughout this country. The reason is that nobody cares about how he or they come to acquire property and no one respects and loves his neighbour when it comes to issues such as the one faced by the accused. There is no record of you taking a strong stance in the way you approached your Village Court authorities. The result of this lawlessness is that the trend of sentencing for willful murder, murder and manslaughter cases have risen to reflect the seriousness of such offences and because the law says that when a person commits any of the homicide cases, he or she can be sentenced to either death or life imprisonment.

The following cases appear from the records which show some example of cases both wilful murder and murder and even manslaughter cases where this Court has sentenced accused to high terms of imprisonment. On appeal some sentences have either been reduced or confirmed by the Supreme Court. Not only that they reflect the serious nature of such crimes and the high volume of homicide cases appearing before our Courts but, it is the intention of the legislature that sentences for willful murder should be between a term of years and death, and between a term of years and life imprisonment for murder and manslaughter cases.

The three appellants in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laeni -v- The State (2004) SC741 (decision of 1st April 2004) appealed against their sentences of 50 years for murdering a teacher, Joseph and Tom escaped and their appeals were dismissed for want of prosecution. Only David Laeni prosecuted his appeal. He appealed against excessiveness of the sentence. The Supreme Court held that the sentence of 50 years was neither excessive nor manifestly excessive. The above case involved some families who gathered in the school campus for an evening worship. The gang entered into the school campus and disturbed them. When they took the daughter of the victim with the intention to abduct her, the victim tried to prevent the abduction, the three appellants with one of them having possession of a gun short the father of the girl at a closed range causing instant death.

In Pauline Painuk -v- The State (2000) SCRA 54 of 2000 (decision of 22.11.02) the Supreme Court dismissed Pauline’s appeal against a sentence of 18 years on plea to a murder charge where the appellant stabbed a school girl twice. She appealed on grounds of excessiveness. The Supreme Court said there that considering the serious nature of the charge of murder, the sentence was not excessive. In another murder case of Max Java -v- The State (2000) SC701 (decision of 20.12.02) the Supreme Court confirmed the decision of 20 years on a guilty plea. It was the case where the appellant pursued the victim and attacked him with a grass knife causing him severe injuries resulting in his death.

The appellant in Agir Caspar Goro -v- The State (1997) SCA 82 of 1993 pleaded guilty to one count of murder and he was sentence by the National Court to 20 years imprisonment. He appealed against the severity of sentence. The appellant in the above case had a similar prior conviction. The Supreme Court said at page 5 of its judgment:

"It was open to him to come to that conclusion when dealing with the Appellant who was involved in such a brutal and cowardly killing. Clearly the Appellant was not imprisoned as a first offender and the fact that he pleaded guilty to the Court would have lost much of it’s weight due to the serious nature of the crime".

In Joseph Enn -v- The State (2004) (unreported judgment of 1st April 2004), the appellant entered a guilty plea to a charge of murder. He got sentenced to 20 years imprisonment. He appealed on the basis that the sentence was too high and that the National Court judge had not considered his personal antecedents. The Supreme Court dismissed his appeal. As can be seen, in the lesser homicide case of manslaughter, the National Court has even imposed sentences of 20 years depending on the serious nature with which that crime is committed. An example of that was the case of Sakarowa Kae -v- The State (2004). The appellant in that case was sentenced to 20 years on a charge of manslaughter. He appealed on the basis that the sentence imposed on him was excessive. The Supreme Court there said the sentence was still a lenient sentence.

Almost in all murder cases, counsels refer to the sentencing guidelines and tariffs set down in The State -v- Laura (No.2) [1988-89] PNGLR 98. National Court judges have often said that the sentencing tariffs set in that case are no longer relevant in our time.

Today, almost invariably murders are committed by the use of lethal weapons including guns, axes, bush knives and even kitchen utensils. I agree and adopt the principle that each case depends on its own facts. Where a murder or any homicide cases is committed with lack of sophistication as in the circumstances of the instant case, the Court must not shrink from it’s Constitutional duties to uphold the law in recognition of the right to life pursuant to s. 35 of the Constitution. This Court has a duty to impose a sentence reflective of the serious nature under which this crime was committed.

The sentencing trend in murder cases is rising because it reflects many factors associated with the social behaviour of mankind in a particular locality. You struggled with this woman as though she was a man. You attacked her cold-bloodedly and cowardly with an axe is the reason why a sentence to be imposed on you must reflect your reckless and careless attitude in the manner you prematurely took the young life away. The Constitution guarantees the right to life and says that no one can be deprived of his or her life unless by execution of law, s. 35.

Let the Court put a few examples of murder cases where the National Court has sentenced accused to life imprisonment. In Joe Foe Leslie Leslie -v- The State (1998) SC560, the appellant was sentenced to life imprisonment. That was a case of the appellant attempting to murder a policeman. He appealed on the grounds that the sentence was excessive. The Supreme Court dismissed his appeal and confirmed the conviction and sentence. In another murder case that of Aloises Peter Irabo Kovei -v- The State (2001) SC676, the appellant was sentenced to life imprisonment for a charge of murder committed in pursuance of an abduction and rape. The trial judge there considered that that was the worst type case falling in the category of cases laid down by the Supreme Courts in Goli Golu -v- The State [1979] PNGLR 653 and Ure Hane -v- The State [1984] PNGLR 105. The Supreme Court in Aloises Peter Irabo Kovei -v- The State (supra) dismissed the appeal and confirm both the conviction and sentence.

In The State -v- Joseph Ulakua (2002) N2240, it was a clear plea to a murder case, the appellant was sentenced to 20 years. He appealed because the sentence was too long. The Supreme Court dismissed his appeal and confirmed both the conviction and sentence.

I have set out the above cases, some of whom have appealed whose appeals have been unsuccessful because the trend of sentencing for murder is rising and the sentences reflect the fact that life is precious as there is only one life given to each human person. Once lost or taken away, it is lost forever.

Although, the circumstances of this case may not be as serious, a life was taken by the use of a lethal weapon namely an axe. What is evident from the facts of this case is that, the accused planned well in advance to kill the victim. This in my view should have been an appropriate case of an indictment for murder. The accused had a lethal weapon. He used it against an almost unarmed woman. Though she may have had a knife when they started to grab each other, the knife may have fallen off form her hands.

The medical report noted that the victim suffered two deep wounds on both sides of her neck. On the left side of the neck there was a 5 cm x 3 cm wound while on the right there was an even bigger one measuring 7 cm x 8 cm. There were deep wounds and the doctor’s opinion was the spinal cord could have been severed by one of those two blows either the one on the right or left.

A guilty plea in a serious charge as the instant case serves no credit and has very little relevance in the determination of the question of sentence; Agir Caspar Goro -v- The State [1997] SCA 82 of 1993. Taking into account all factors both on mitigation and aggravations, the sentence of this Court is 22 years imprisonment in hard labour. The custody period shall be deducted. The prisoner shall serve the balance.
_____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor