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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR.NO.679 OF 2004
THE STATE
-V-
BERNARD HAGEI
BUKA: LENALIA, J.
2005: 9th & 21st September
Criminal Law – Wilful Murder – Plea – Sentence – Criminal Code s. 229, (Ch. No. 262)
Criminal Law – Practice & Procedure – Sentence – Wilful murder after victim had been raped – Killing with intent to conceal offence of rape – Victim allured and tricked to be taken to her aunt – Offence of rape not charged – Murder committed after victim was raped – Offence amongst the "worst category" – Victim raped after which she fled – Chased and brutally murdered.
Criminal Law – Wilful Murder – Sentence – Principles of – Mitigating and Aggravating circumstances – Offence committed for purposes of concealing another serious crime – Circumstance of aggravation – Four fatal blows to the head causing instant death – Piece of wood used to hit back of the head with intent to kill victim – Maximum penalty not appropriate – Death penalty ought not to be imposed – Criminal Code s.229.
Cases Cited:
The following cases are cited in the judgment
Avia Aihi (No.3) – v – The State [1982] PNGLR 92
Goli Golu – v – The State [1979] PNGLR 653
Hure Hane – v – The State [1984] PNGLR 105
Steven Loke Ume & 2 Others – v – The State (2000) SCRA 10 of 1997
The State – v – Arua Maraga Hariki (2003) N2332
The State – v – Kepak Langa (2003) CR No.300 of 2003
The State – v – Ben Simakot Simbu CR. No. 1413 of 2002
Manu Kovi – v – The State (2005) SC789
The State – v – Mark Poroli (2004) N2655
Counsel:
F. Popeu, for the State
L. Siminji, for the Accused
21st September 2005
LENALIA, J: On arraignment, the prisoner pleaded guilty to the crime of wilful murder contrary to Section 229 of the Criminal Code.
The admitted facts are these. On Saturday the 1st of November 2003, the victim, Georgina Reina Giobun was sent by her parents from Malasang village to her aunt Mrs. Hogomo Turiana at Ieta village on the out-skirts of the Kieta town and the airstrip here in Buka. The victim was sent to get some food from her aunt since her parents did not have any food for that day. She was given instructions by her mother that if she arrived at Ieta and her aunt and family members were not there, she was to wait in the village until they came home.
The victim came to Ieta village and sat out side the steps to Trevor Turiana’s house. While she was sitting there, the accused came to her and she asked the accused if the accused knew where her aunt and her family were or where they had gone to. The accused replied that, her auntie and the family had gone out to their gardens. The accused then offered to lead the victim to the gardens where her aunt and her aunt’s family had gone to. In fact, that was the first lie on the part of the accused. With that understanding, the victim agreed to go with the accused with the intention to go to find her aunt in the gardens.
According to the record of interview, the prisoner said, instead of leading the victim to her auntie’s garden, he led her through another track to the scene where he forcefully raped her. During the time, the accused was having sexual intercourse with the victim, the accused told the victim that, after sex, she should not tell anyone about the rape. However, when the pair finished having sex, the victim stood up and started to run away naked while only holding on to her trousers. She left her bra, the pants and her top in the hands of the accused.
She ran a distance away from the accused because the accused was zipping-up his trousers and while she was running, the victim said something to the effect that, she was going to report to her relatives and her parents what the accused had done to her. Having heard what the victim said, the accused ran after the victim and having caught up with her he then administered a hard punch to the back of her head causing her to fall over with her face and front side of her body facing the ground.
Whilst the victim was lying on the ground, the accused picked up a piece of stick and used it to club the victim by administering four (4) fatal blows to the back of the victim’s head. The victim died instantly.
Having killed the victim, the accused noticed that, she was dead; he then pulled the deceased by dragging her body along the ground to a nearby rotten log where he hid the body underneath it and thereafter covered it with dead leaves and dirt. The accused then left to the village.
That same afternoon, Mr. and Mrs. Hillary Nima and Sabina Nima went to their gardens to cut firewood and to check Hillary’s pigs’ trap. They found some of their friends who were already digging kaukau in their respective gardens, and the two of them branched out. Hillary took time to talk to their friends then went on to check his trap while Sabina went further to collect firewood. As she was going through the bushes, she got attracted by fresh signs of human foot-prints left on the grass and dead leaves.
Thinking it was a pig going toward her husband’s pig trap, she followed the prints and then she realized they were human foot-prints. As she was looking around expecting to see someone, she found the body of the late Reina Georgina Giobun. She then called out to her husband and the others in the garden to see the body. Police was called to the scene and the investigation commenced immediately and the accused was taken in for questioning.
On the physical external medical examination, the doctor noted that the deceased body was found to be stiff and the nose, mouth and the vagina were covered with blow flies droppings. Blood clots could be seen in the vagina with tears on both lateral walls. The doctor concluded:
"The obvious cause of death was a communicated skull fracture at the occipital region of the skull. This appears to be a bag of bones. The head was freely mobile conforming to a cervical spine fracture dislocation at the base of the skull"
On addresses, when the accused was asked by the Court if he wanted to say anything before his lawyer address the Court on sentence, the accused said, he is very sorry to the Court, the victim, her parents and their relatives. He also said that, when he was already in the hands of the police, he was forcefully taken away by the relatives of the victim to the village where he was severely beaten up and speared. On the invitation of Mr.Siminji of counsel for the accused, the prisoner removed his shirt and showed to the Court scars that he sustained when he was bashed up.
He said he was also cut with axes and knives. There is a scar on the back of his body which the accused said the spear went through right to the front on the chest. There was however no medical evidence presented to Court on his injuries.
Mitigating factors raised in favour of the accused by the defence counsel are that, first, though they agree the case of their client falls into one of the worst category of offences, the Court ought to consider the fact that the prisoner was severely beaten in the eyes of the police at the police station then was taken out of the police custody then thereafter he was taken to the village where he was cut with axes and bush/knives by the relatives of the victim. Certainly these are factors the Court will consider on sentence.
Mr. Siminji highlighted on how the spear was driven through the body of the accused from his back to the chest just about below mid the right breast. In fact Mr. Siminji confirmed what the accused said that, after the accused was speared, he died and his body was wrapped up in a plastic and was place in the hospital morgue. But when the body was about to be put away into the morgue, the accused raised up adding that it was truly a Divine intervention for the accused to have been raised and without the spear piercing the prisoner’s heart.
Other mitigations include the accused guilty plea to this very serious charge. Certainly the accused guilty plea to a very serious charge like the one under consideration could be mitigation but weighing the serious circumstances under which this crime was committed any mitigating factors raised in favour of the prisoner would fade very significantly.
I agree however with counsel that, the State’s case would have been circumstantial had the prisoner chose to enter a not guilty plea. But, I don’t accept counsel’s submission that the prisoner’s excessive indulgence in alcohol should be taken as a special extenuating circumstance. I will return to this latter.
Mr. Popeu of counsel for the State made a brief reply saying that, the accused on the morning of the date in issue had gone around with the intention to commit rape upon any women who might be vulnerable that morning. The facts show that the accused attempted to rape another woman before he committed this crime. That is not however a consideration before this Court. Counsel submitted that, especial aggravations include raping the victim then to cover the rape, the prisoner killed the victim. He submitted the Court must consider imposing the maximum penalty provided for the section charged.
The Law
The prescribed penalty for the crime of wilful murder pursuant to s.299 of the Criminal Code is death. Depending on the factual circumstances of a case under consideration, the Court can either impose the prescribed maximum of "death" or a life imprisonment. This Court is vested with such sentencing discretion under s.19 of the Code.
The maximum penalty under s.299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment. However by an Act No.25 of 1991, the Parliament amended Subsection (2) and replaced life imprisonment with the death penalty. Since that amendment, the National Court in this jurisdiction has imposed the death penalty in a number of cases.
The first of those cases where the death penalty has been imposed is The State- v -Ombusu (Unreported National Court Judgment of 17th February 1995). That was the case where Doherty; J. imposed the death penalty on the accused a man from Popendetta for wilful murder.
On appeal by the appellant in that case, the Supreme Court comprising of five men bench upheld the appeal in both conviction and sentence for rape and wilful murder were quashed on technical grounds only, (See Ombusu- v- The State [1996] PNGLR 335).
The next case that of The State- v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997). Woods; J. sentenced the three accused to death for what His Honour there considered to be one of those worst type cases. When the three appellants appealed, against both conviction and their sentences of death, after grant of legal aid by the Public Solicitor a Supplementary Notice of Appeal was filed on 23rd of July 1997 in which he appealed against conviction only. The Supreme Court consisting of Amet; CJ: Kapi; DCJ: (as they were then) and Sevua; J: dismissed the appeal against conviction, (see Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa- v- The State SCRA 10 of 1997 decision dated 4th May 2000).
The Court shall mention some more cases a little later on which the maximum penalty of death has been imposed but for the moment let the Court now mention the principles of sentencing for wilful murder cases which have been enunciated by the Supreme Court in three earlier cases at the time when life imprisonment was the maximum penalty for the offence of wilful murder. In Goli Golu - v -The State [1979] PNGLR 653, the Supreme Court said:
"In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence"
Three years after that, in Avia Aihi - v - The State (No.3) [1982] PNGLR 92 the Supreme Court held that:
"The basic principle of proportionality to the offence applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed only in cases properly categorized as "worst type" cases".
In Ure Hane - v - The State [1984] PNGLR 105 on the foot-note the Supreme Court said:
"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, categorize 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 the same case above, Bredmeyer; J: without exhausting the list of what His Honour categorized to be the worst type of cases he set out a list of cases he considered to be serious kinds of wilful murder from pages 107 – 109 of the judgment:
At page 109 of the above case, His Honour said:
"I consider that if a wilful murder falls into any 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 judge then must consider the seriousness of the particular murder in the case of seriousness of the murders in that category."
Very recently, a number of cases have been considered to be amongst the "worst type" of cases. Since the sentence of death in The State- v - Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (supra) no death sentences were imposed until 2003 when two death sentences were imposed. In The State v Arua Maraga Hariki (3.2.03) N 2332. Salika; J imposed the death penalty on the accused who killed two young men whom he had been drinking alcohol with on the evening of the date of the offence. For one of the victims in that case, there was clear evidence that the accused strangled him until he died. On the other victim, the accused was found guilty on circumstantial evidence. That was a trial and the Court there found that case to be amongst one of the worst type category.
Still in 2003, Jalina; J imposed the death penalty in The State- v- Kepak Lanaga (26.9.03) CR.300 of 2003. In that case, the prisoner was charged with the wilful murder of one John Daniel at Imi village in Wabag, Enga Province. The deceased there was chopped several times on the head by the prisoner and other clansmen in an ambush on a group of people who were with the victim. In consideration of whether or not the death penalty should be imposed, His Honour made the following observations at page 13 of his unreported judgment:
"So in the present case, considering the circumstances of the killing which was an ambush killing carried out in cold blooded, I am of the view that ambush killings such as the present one must be categorized 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 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 categorized amongst the "worst type" cases, then what kind of killing would warrant the death penalty"
Having quoted the above passage from His Honour’s judgment, I do not necessarily share his views on the sentence imposed by the trial judge in that ambush case he referred to (The State v Alois Erebebe).
In The State- v- Ben Simakot Simbu (No.2) (25.3.04) CR.No.1413 of 2002, the accused was charged for wilful murder. He was tried and convicted then was sentenced to death. The accused in that case wilfully murdered the mother and her child by using a piece of iron to strike the mother’s head several times causing instant death. The helpless 2 year old child was also hit after the mother had been killed. They both died instantly. In the case above, the accused went to where the victims were and asked the mother to borrow a life chicken. She refused and the accused asked yet the second and third time. When the victim refused, the accused then administered fatal blows first on the mother followed by the child. The accused in that case was sentenced to death by Kandakasi; J. The case above was considered to be one of those worst cases.
Still in 2004, in The State- v- Mark Poroli (25.8.04) N 2655, this Court sentenced the accused to death for cold-bloodedly killing a policeman in Koroba, in Southern Highlands. The policeman was on duty with full uniform had slept in the bush after he and his colleagues had been chased by villagers after a confrontation with people who gathered during a campaign rally. There was a shoot – out between police and the people.
Next morning the accused and his men hunted the policemen down and caught up with the victim. He shot him at close range after a so-called pastor had prayed. When the victim finished praying, the accused shot him. He died immediately. I commented in the case cited above that, it was one of the "worst type" cases which warranted imposition of the maximum penalty of death.
I now come back to the facts of the present case. By the principles enunciated in Ure Hane’s case (supra) the instant case falls within the first category.
That is the crime committed by the prisoner was done so after he raped the victim. I find the circumstances of the present case to be so highly aggravating. Here is the case where the accused had enjoyed the sexual pleasure of the victim and because the victim expressed her dissent on the accused behaviour towards her, the accused in the hope to conceal the rape, brutally terminated the victim’s life. The victim did not do any bad things to you, but you instead committed two evil acts upon her by first raping her and secondly you ended her young life. Such life is now gone forever, never to be recovered.
In the case of The State - v - Mark Poroli (supra), this Court expressed concern about the casual attitude taken by many Papua New Guineans on the only God given life to human beings. Although Poroli’s case is not authority, I quote myself at page 18 of that judgment:
"Simply put, the facts of the instant case reveal that the nature of killing was one of those most barbaric brutal, horrific and cruel type of killing known to this Court in the history of the Constabulary in Papua New Guinea. Honestly, the Court must say, there was no mercy shown to the deceased since, he was from a nearby neighbouring coastal Province of Western Province. ..."
I continued in the third paragraph:
"It appears to this Court that, life is very cheap in Papua New Guinea. Crimes of homicides are freely committed without fear and respect due to the human person. Lack of sophistication cannot be claimed in this part of the country. Exposure to both the Government and Christianity has been around for sometimes now. But despite such exposure, such influences have had very little impact on communities in the country."
The people of this country have spoken through the Parliament for the maximum penalty for the crime of wilful murder which has been fixed by the legislature itself as the appropriate penalty to be one of "death".
It is the duty of this Court to protect human life and uphold the Constitution to protect life and property. It is too late now to protect the life of Georgina Giobun, but what the Court will do is exercise its powers given it by the Constitution and the Criminal Code to punish the accused for the wrong he has committed. (See s.35 of the Constitution and s.299 (1) and (2) of the Criminal Code).
There are so many wanton killings happening in the country at will as though life is some form of commodity or replaceable items that can be borrowed or bought from the hardware shops in town. Killings in this country are becoming more daring without fear and there is no respect for the sanctity of life. Brutal, horrific and cold - blooded killings are becoming too frequent.
In the recent past, the National Court Judges have been trying to impose higher penalties for all forms of homicides but obviously imposition of very high penalties has not achieved the intended aims of containing the rate of manslaughter, murder and wilful murder cases and the punitive aspect with the view for public deterrence and the intended effect on the likely would be offenders.
The killing in the instant case was viciously carried out on a defenceless girl. Georgina was a school student at Malasang Primary School. Her age is not disclosed by the summary of facts but the Court may say she was very young at the time the prisoner killed her. As though, raping the victim was not enough, to satisfy your sexual gratification, you went ahead to mercilessly execute summary termination of the victim’s only life.
I must reject part of the submission by Mr. Siminji that, the Court should take into account the fact that the accused was drunk the night before the offence was committed. Whilst that may be so, the accused had prowl around the morning of the date of the offence. He had attempted to rape a Siwai woman. It was lucky for her because she shouted and the accused was frightened he might be found so he left her. If the Court accepts the defence submission that, consumption of alcohol could be taken as a mitigating factor in this case, I would be setting or enunciating some new principles of law when in fact ss.28 and 29 of the Criminal Code are very clear on the issues of insanity and intoxication. In R – v – Evi [1975] PNGLR 30, the case on the issue of a defence of intoxication, it was held that the accused has the onus to prove on the balance of probabilities the requirements of the defence including the fact that the accused had no intention to cause his or her own intoxication.
Drunkenness can only be a defence to a case where the intent is an essential element: Terrence Leonard Detton – v – Verdun Brien McNeil (1960) No. 174. In a trial of a defence of intoxication, once such a defence is raised, the prosecution must negative that defence beyond reasonable doubt showing that the accused had the relevant intention: The State – v – Joseph Evara (1979) N 201.
Unlawful taking of another person’s life is very serious indeed and offenders ought to be adequately punished. The Courts have consistently reiterated the basic principle that, the sanctity and value of human life is very precious and valuable than anything given for the enjoyment of humanity in the whole universe.
The facts in the present case are clear. It involved application of direct force in a calculated manner by the use of a piece of wood on the victim’s vulnerable parts on the body of the deceased namely the head and neck. The death in the instant case was caused by an offensive weapon namely a piece of stick. It was not a single blow but there were four (4) mighty blows. The reason I say "mighty blows" is because the doctor found that, the head of the victim appeared to be "a bag of bones." The head was freely mobile meaning it could be twisted around. This is what the doctor said:
"The head was freely mobile conforming to a cervical spine fracture dislocation at the base of the skull"
Given the prevalence of this crime, the Court must be firm and consistent with its sentencing tariffs and principles set by the Supreme Court. In Manu Kovi – v – The State (31.5.05) SC 789, the Supreme Court consisting of Injia; DCJ. Lenalia & Lay JJ. the Court reiterated that, the maximum penalty of death must be reserved for the worst cases of wilful murder. Manu Kovi’s case (supra) was the case where the accused killed his wife in a public motor vehicle in full public view in the bus and the accused was sentenced to life imprisonment. He appealed against both the conviction and sentence.
The Supreme Court dismissed the appeal and confirmed both the conviction and sentence on the basis that considering the serious nature of the offence, the life sentence was warranted and such crime ought to be visited with punitive and deterrent sentences.
In fact the Supreme Court in the above case did a review of the tariff of sentences for the three classes of homicide cases. Mr. Popeu of counsel for the State rightly submitted that, the present case falls into category four (4) in the above case for the offence of wilful murder. The Court there suggested that, for category one (1) in case of an uncontested case with mitigating factors and with no aggravations, the starting point would be 15 years up to 20 years and sentences below 15 years should rarely be imposed except in exceptional cases with special extenuating circumstances and special mitigations.
For second category, the Court there suggested that, for contested or uncontested cases with mitigating factors and with aggravating circumstances, a range of sentence from 20 to 30 years. Examples of this category would fall under such circumstances as there was no motive for the killing or there were multiple wounds inflicted on the body resulting in instant death. Under this category it is also recommended to cover situations where there was vicious attack on an innocent person resulting in suffering fatal wounds inflicted on some vulnerable parts of the victim’s body or where a victim has been deliberately shot with a gun following some arguments.
The third category suggested in the above case falls into the different categories of wilful murders suggested by Bredmeyer in Ure Hane – v – The State (supra). The recommended penalty for the third category for wilful murder suggested in Manu Kovi’s case (supra) is life imprisonment. The maximum penalty of death is reserved for the worst type cases of wilful murder.
Before the accused is sentenced, the Court ought to say that, perhaps the only mitigating factor in favour of the prisoner is his guilty plea to this very serious crime. I must also take into account the fact that; the accused was severely beaten up by the relatives of the victim and particularly when he was already in the hands of the police. In sentencing the prisoner, I consider that, the wilful murder you committed falls within the worst type category of wilful murder warranting imposition of the maximum penalty of death prescribed by s.299 (2) of the Criminal Code.
However, having expressed those sentiments, this Court is not going to impose that sentence as I find there were extenuating circumstances which factors I have referred to above mentioned in your favour such that it would not be just to impose the death penalty. The prisoner is therefore sentenced to life imprisonment. The prisoner shall serve his term in either Keravat or Bomana Corrective Institution.
______________________________________________
Lawyer for the State: The Public Prosecutor
Lawyer for Accused: The Public Solicitor
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