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State v Mongi [2007] PGNC 135; N3259 (12 December 2007)

N3259

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1649 of 2005

THE STATE

v.

CLARENCE TEMA MONGI

Buka: Sevua, J
2006: 17 & 28 July
2007: 12 December

CRIMINAL LAW – Sentence – Wilful murder – Plea of guilty – Serious aggravated circumstances – Accused smoked one roll of marijuana – Victim aged 7 years – Accused observed victim collecting nuts – Accused followed and grabbed victim – Accused led victim to a cliff – Accused punched and concussed victim – Accused carried victim to another area – Accused tried to punch victim again but missed and hit a rock – Accused tried to punch victim again but missed and hit a rock – Accused then became incensed and twisted victim’s neck killing her instantly.

PENALTY – Wilful murder – Plea of guilty – Effect of drug – Whether accused knew what he was doing – Serious aggravated circumstances warranting maximum penalty – State called for death penalty – Whether death penalty should be imposed – Discretion of Court.

SENTENCE – Wilful murder – Plea of guilty – Victim very young – Whole life snapped out of her – Whether plea of guilty and other mitigating circumstances sufficient to enable Court to ignore maximum penalty – Circumstances of crime grave enough to warrant maximum penalty – Maximum sentence of death imposed.

Cases cited:

Papua New Guinea Cases:
Manu Kovi v. The State (2005), unreported, SC836, 31 May 2005
The State v. Ben Simakot Simbu (No 2) (2004) N2546, unreported, 25 March 2004
The State v. Rex Lialu [1988-89] PNGLR 449
Kesino Apo v. The State [1988-89] PNGLR 182
Mase v. The State [1991] PNGLR 88
The State v. Arua Maraga Hariki (2003), unreported, N2332, 3 February 2003
The State v. Kepak Langai (2003), unreported, N2463, 26th September 2003
The State v. Mark Poroli (2004), unreported, N2655, 25th August 2005
The State v. Sedoki Lota and Fred Abenko (2007), unreported, N3183, 1st October 2007
The State v. Jude Gena & 4 Ors (2004), unreported, N2649, 24th September 2004
The Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510
Steven Loke Ume & 2 Ors (2006), unreported, SC836, 19th May 2006
Regina v. Peter Ivoro [1971-72] PNGLR 374
Tony Amuni Api v, The State (2001), unreported & unnumbered, (SCRA 16 of 2001), 29th August 2001

Overseas Cases:
Profitt v. Florida 428 US 249

Legislation Cited:
Constitution, ss 35, 36.
Criminal Code, ss. 19, 299, 539, 595.

Counsel:
F. Popeu, for State
P. Kaluwin, for Accused

12 December, 2007

1. SEVUA, J : On 17 July 2006, the accused, Clarence Tema Mongi of Lonahan village, Buka, pleaded guilty to a charge of wilful murder and sentence was reserved, due to the gravity of the crime.

2. The facts are that, on 15 July 2004, at Lonahan village, Buka, between 9:00 and 11:00 am, the deceased, Celina Kuhil, then aged 7 years had gone to the bush to collect galip nuts. At that time, the accused, who had consumed marijuana, came by and saw the deceased collecting nuts. He then grabbed her and pulled her towards a cliff. Near the cliff, the accused punched the deceased on her head resulting in a concussion. Whilst the victim was in that state, the accused carried her to another area and when the deceased regained consciousness, he punched her on her head again. As he was going to punch her again, he missed and punched a rock. He became incensed then twisted the deceased’s neck killing her instantly.

3. After the victim had died, the accused attempted to insert his penis into her vagina, however he could not penetrate her because she was too small. He then pushed his fingers into her vagina and anus and vagina to enlarge it. After doing that, the accused inserted his penis into the deceased’s anus and sodomized her. The accused later carried the deceased body to a small cave and hid the body in it. The body was recovered in the evening following a search.

4. The State alleged that the accused had intended to kill the deceased and therefore indicted him with wilful murder contrary to s.299 of the Criminal Code Act.

5. The accused pleaded guilty to the charge and was thereafter convicted of wilful murder after perusal of the Committal depositions. When his rights under s.593 was administered in allocutus, the accused said the following:

6. From the personal antecedents of the prisoner, his counsel submitted that he is 23 years, single, and resided at Lonahan village. He is of the Catholic faith. His parents are alive and he is the seventh in a family of seven. He was a Grade 7 pupil at Lonahan Primary School in 1999, but did not complete that grade. He has a prior criminal conviction on a charge of stealing before the District Court in 2000 where he was fined K100.00.

7. Counsel referred to the maximum penalty of death, and submitted it is subject to s.19 of the Code.

8. On sentence, counsel submitted the following and urged the Court to take them into account –

• Remorse by the prisoner
• Apologised to the Court
• Apologised to the family of the deceased.
• Paid compensation to the deceased’s family; and
• Court should give little weight to the prisoner’s prior conviction as it was not a violent offence.
  

9. Reference was made to Manu Kovi v. The State[1]; where the Supreme Court set out various sentencing tariffs in homicide cases. Counsel referred to page 15 in that judgment where the Supreme Court said that the death penalty should be reserved for the worst case of wilful murder. Mr. Kaluwin also submitted that a ‘worst case’ would depend on its own circumstances. He referred to page 5 of that judgment where the Court discussed mitigating factors and submitted that the Court should distinguish special mitigating factors from ordinary mitigating factors.

10. Furthermore, Mr. Kaluwin submitted that the earlier the plea, the more weight the Court should attach to the plea. He relied on the case John Kalabus, but did not provide the citation.

11. Counsel urged the Court to take note of the evidence of Lilian Solas and submitted that without the admission in the Confessional Statement, there is no evidence to connect the prisoner to the crime.

12. Counsel further referred to the issue of compensation payment in Kovi’s case where traditional forms of compensation was distinguished from the modern concept of compensation and reference to the letter which was tendered in Court in respect of the payment of compensation.

13. It was also submitted that the guidelines suggested by the Supreme Court in Manu Kovi (supra) be considered in this case. Counsel asked the Court to take into account the matters he has submitted and especially the mitigating factors he has referred to. It was his submission that a custodial sentence would be more appropriate than the death penalty. He submitted that the death penalty is not appropriate in this case. A Pre-Sentence Report was requested and an order made for it to be produced to the Court.

14. Counsel for the State, Mr. Popeu briefly submitted that the maximum penalty is death. The Court was urged to consider that the deceased was a 7 year old girl. Counsel submitted that the prisoner has not advanced any reason for causing the death of the victim. The prisoner was under the influence of marijuana, however, it was submitted that, the effect of drug in this case was self induced intoxication which makes this case a very, very serious case.

15. Mr. Popeu referred to a similar case in Vanimo; The State v. Ben Simakot Simbu[2]; which involved a small girl whom the prisoner killed and the prisoner did not give any reasons for killing the girl. Counsel submitted that, there is no special mitigating factor warranting a lesser penalty than the prescribed maximum penalty. It was submitted therefore that the maximum penalty should be imposed.

16. In reply, Mr. Kaluwin for the prisoner submitted that the special mitigating factors as in Manu Kovi have been pointed out. Counsel submitted that whether or not there were reasons, the result did not matter. The Court was asked to give credit to the prisoner for his admission in the Confessional Statement for without that a conviction would not be secured.

17. In relation to the Pre-Sentence Report, Mrs. Cicely Kekun, the Provincial Welfare Officer was in Court and she assured the Court, it would take 4 days to compile the report. The case was therefore adjourned to 25 July 2006 for the report to be provided.

18. Up to 17 July 2006, Mr. Kaluwin submitted that the prisoner had been in custody for 2 years 2 days.

19. On 25 July 2006, the Pre-Sentence Report was received and the matter adjourned to 28 July 2006. On 28 July, the Court explained to the prisoner the essence of both counsels’ submissions and informed the prisoner that sentence would be reserved and both counsels will be advised.

20. I have had the liberty of perusing the Pre-Sentence Report and thank Mrs. Kekun for her assistance to the Court. I have noted the views of the parents of the deceased including those of the parents of the prisoner. I have also noted the views expressed by Mr. Francis Semoso, a trauma counsellor and uncle of the prisoner. I need to say at this juncture that, after perusing the report, I am not influenced one way or the other in respect of the opposing views and attitude towards penalty. I have also noted the Provincial Welfare Officer’s comments on suitability for probation. I consider that if the prisoner was suitable for probation, a recommendation would have been made. In the absence of such a recommendation, I am unable to conclude that the prisoner is entitled to probation and perhaps the absence of such a recommendation is due to the seriousness of this case.

21. The Court has also had the liberty of perusing the letter by Mr. Semoso in his capacity as Clan Representative of the prisoner’s clan. In the letter, Mr. Semoso alluded to a Reconciliation Ceremony held at Lonahan village sometimes before 6 May 2005, the date of the letter. In the ceremony, the sum of K2,000.00 cash; a pig valued at K200.00; store goods totalling K400.00 and traditional money valued at K300.00 were presented to the parents of the deceased by the parents of the prisoner. This ceremony was witnessed by the Buka Police Station Commander, Inspector Cletus Tsien, the Paramount Chief and his Chiefs; family chiefs and representatives and the Restorative Justice for the Community Peace and Good Order Committee. This ceremony is indicative of some level of peace being achieved and the improvement of the relationship between the two families.

22. The Court has taken into account the payment of compensation, the two letters and the concerns thereof for purpose of mitigation. I have also taken into account the various issues in Manu Kovi (supra) that counsel for the prisoner has referred to, and which I wish to refer to as well.

23. At page 5 in Manu Koivi’s judgment, the Court described mitigating factors. It distinguished ordinary mitigating factors from special mitigating factors. The ordinary mitigating factors are those matters that go to the personal antecedents of the prisoner. Those have been alluded to and the Court has taken them into account. The special mitigating factors in this case would be the payment of compensation, which I have also alluded to, and the total cash equivalent including the K2,000.00 cash, would be K2,900.00.

24. In Manu Kovi (supra), the Court was of the view that the amount of compensation between K5,000.00 and K10,000.00 would be taken as a special mitigating factor. In comparison to the present case, the total amount of compensation is approximately K2,900.00, therefore to accord with the view held by the Supreme Court in Kovi, the compensation payment could not be stated as special mitigating factor due to the fact that the amount involved is less than in Kovi’s case.

25. However, I consider that whether the compensation payment in this case is an ordinary or a special mitigating factor, the fact is that some form of compensation has been paid to achieve some level of peace and restoration of strained relationship. I do not think it will be fair to take that away from the prisoner and his parents and relatives. But the fact remains that no amount of compensation and no matter how much peace and reconciliation have been achieved, those matters will not bring back the young deceased to life.

26. Mr. Kaluwin’s submission in relation to the maximum penalty on page 15 of Kovi’s case has also been considered. I will discuss this issue when I discuss the law and other cases that have applied the maximum penalty of death.

27. However at this juncture, let me reiterate that all the mitigating factors, the Antecedent Report, Pre-Sentence Report, the letter confirming payment of compensation and the s.539 statement in allocutus have been duly considered. I pay special attention to Mr. Kaluwin’s submission that without the prisoner’s admission, it would not have been possible to record a conviction of wilful murder. I accept that submission as it is a fact.

28. However, it must be emphasized that the admission was not demanded or extracted from the prisoner through unlawful means. As counsel has alluded to the evidence of Lilian Solas, I will refer to that before I refer to the Confessional Statement.

29. Lilian Solas is a Policewoman Constable at Buka Police Station. She explained that on 15 July 2004, she was on her way to Malasang with Senior Constable Jeffery Magum (now sergeant) on a different assignment when they were met by Vincent Tanaha, an Auxiliary Police Officer who alerted the two police officers to the location of a child. They then proceeded to that location after contacting Buka Police Station and requesting additional manpower.

30. After interviewing several villagers, the prisoner’s name emerged as someone who might have some knowledge of the death of the young girl. The prisoner was apprehended at Kokopau, which to persons who have not been to Bougainville, is the most northeastern tip of mainland Bougainville, which is approximately 5 minutes ride in a banana boat to Buka town.

31. The most relevant part of Constable Sola’s evidence is this.

32. The above evidence is consistent with that of Senior Constable Magum whose evidence is as follows:

33. As can be seen from these evidence, the police officers involved in this case did not induce or invite the prisoner back to the police station. He volunteered to go there because, he "appeared very nervous and distressed." He was cautioned twice. The only reason I could think of the prisoner’s behaviour at that time is his guilty conscience. In my view, the prisoner’s cognitive ability to recall what he had done to the deceased, coupled with taking cognizance of the facts led him to surrender to the police at the village then was taken to Buka Police Station which eventually led to his full admission of the perpetration of this heinous crime.

34. And whilst we are on this issue, I consider it worthwhile to refer to the prisoner’s admission so that one can truly appreciate the enormity of, and the senselessness in this killing. After Senior Constable Magum had cautioned the prisoner following his oral confession, a written confession was obtained after another caution. I cite in full the answers to Question 4 in the Confessional Statement.

35. That is a full account of what the accused did to the deceased on that fateful day. As far as I am concerned, the consumption of one roll of marijuana had little effect on the prisoner’s mind. There is no medical evidence that it did. I consider that had he been severely affected by marijuana, he would not have given a detailed account of what he did to the young girl.

36. I am of the view that despite smoking one roll of marijuana, he was fully alert and conscious of his actions. The detailed account of what he did, in my view, could not have been the recollection of a person whose mind or mental capacity was so affected by marijuana that he did not know what he was doing or he could not recall what he did. As I said, there is no medical evidence that the amount of marijuana consumed had affected his mind so that I may constitute diminished responsibility.

37. I find from those facts that the prisoner was not affected by marijuana to the extent that he did not know what he was doing to the deceased. Therefore there can be no doubt in anyone’s mind that the prisoner knew what he was doing at the material time.

38. The Court has considered the mitigating factors of this case. In my view, the plea of guilty, co-operation with police and the payment of some compensation are facts which can be held in favour of the prisoner. However, it is my opinion, that the whole circumstances of these killing are such that those mitigating factors fade into insignificance.

39. Here we have a 7 year old girl, who had all her future before her, killed in bizarre and horrendous circumstances. The immensity and seriousness of this heinous crime can be seen by looking at the whole course of action carried out by the prisoner, and by the various acts of violence, sexual indignities and perversions involved in ending this young girl’s life prematurely. Simply, her life was snapped out of her.

40. The deceased was going about her lawful business. She did not provoke or irritate the prisoner so that he could lead her away from what she was doing. She was punched several times on the head for no good reason. Evidence suggests that she was bleeding when the prisoner carried her after he had concussed her. The photographs of the face of the deceased clearly revealed injuries to the face with blood clot on the face. As I have alluded to, with a twist of the neck, the girl’s life was snapped out of her.

41. As if that was not enough, the prisoner attempted to rape her, but failed and eventually he sodomized her when she was already dead, then hid the body in a cave, perhaps thinking that the crime and evidence would be concealed forever. Can one say this is not a case of the worst murder case? And if it is not a worst case, what is?

42. It is difficult to describe the feelings that these facts would have on the parents of the deceased and in the minds of the ordinary law abiding citizens in Buka and Bougainville, and even the rest of the country for that matter. It is hard to imagine the level of degradation involved in what ought to be described as a crime of a very serious nature. Whilst the Court acknowledges that no weapon was used in the commission of this crime, I do not think it is proper to describe the crime as a not so serious or not a worst case of wilful murder. In my opinion, it is a very serious case.

43. The maximum penalty for wilful murder pursuant to s.299 of the Criminal Code is a sentence of death and the form of pronouncement of sentence is in accordance with s.597. The State has called for the death penalty in this case whilst the defence counsel has pleaded for a sentence other than the death penalty. The Court has duly considered the submissions of both counsels. Of course, the imposition of the maximum penalty is at the discretion of the Court under s.19 of the Code.

44. In relation to compensation payment, while it has been held as a mitigating factor, I have always maintained that it is not a way of buying one’s liberty. That is not the purpose of compensation. The purpose of compensation is to restore peace and harmony within a community between two persons or two groups of persons. That has always been the traditional purpose of compensation. In my view, when the Courts give prominence to the amount of compensation paid and reduce sentences because of the large amounts of compensation, the principles of criminal law will lose its significance and purpose.

45. What I read in Manu Kovi (supra) on this issue, in my view, is quite dangerous and unacceptable, because the obvious rationale of what the Supreme Court said is that the higher the amount of compensation, the huge reduction a prisoner gets on his sentence. This is outside the scope of compensation payment in a criminal case. The net result will be that the rich and the wealthy will buy their time out of prison while the poor languish in prison. In my view, that will in turn lead to more legal and social problems. I do not subscribe to the views expressed in Manu Kovi’s case.

46. With respect, I disagree with that view. A proliferation of larger amounts of compensation means that compensation is being given more prominence then punishment for a serious, violent crime such as the present case. I prefer the view of Amet, J (as he then was) in The State v. Rex Lialu[3], where the Court said:

47. With respect, those principles accord with my own views. That is why I have often said that compensation is not a way of buying one’s liberty. I have applied this principle in cases that compensation has been raised as a prominent mitigating factor. The principles in Lialu are preferred to those in Kovi.

48. As to intoxication, the law is clear. Self-induced intoxication whether by alcohol or drugs is not a defence in criminal law and is not a mitigating factor. In the context of alcohol, I agree with the views expressed by Kapi, DCJ (as he then was) in Kesino Apo v. The State[4], at 183:

49. The Supreme Court in that case cited inter alia that "the effect of intoxication at the time of the commission of the offence is not a matter relevant to mitigation of sentence".

50. The joint judgment of Kidu, CJ and Amet, J (as he then was) in Mase v. The State[5] stated almost the same thing.

51. Those cases involved intoxication by alcohol. The present case involved marijuana. I am of the view that the above principles apply equally to this case because the effect of both drugs are the same. However, I must say that there is no evidence that the prisoner was moderately or severely affected by the consumption of one roll of marijuana. Therefore I do not find as a fact that the prisoner was affected by marijuana. In any event, he should not have smoked that roll of marijuana. Having smoked it, he must accept the consequences of his own action. I hold that smoking one role of marijuana is not a mitigating factor in this case.

52. In respect of penalty, I have asked myself this question, should the maximum penalty be imposed in this case or not? I have considered a number of cases which the death penalty had been passed on the offenders. Whilst the State has called for the death penalty, it does not mean that the Court should automatically accede to that call and impose the death penalty. Such penalty calls for the exercise of the Court’s discretion and is dependent on the facts of a given case.

53. In my view, all the circumstances of the case must be considered seriously. In this judgment, I have quoted the admission by the prisoner in his confessional statement. I did so to highlight and emphasise the enormity of this crime to accord with the principle entered by the Supreme Court in Mase & Anor v. The State (supra)[6], where the basis held inter alia:

54. I maintain my view that this is a very serious case and the enormity of this crime when viewed totally reflects that this is a horrific killing.

55. It must be reiterated that the deceased was a mere 7 year old child whose life and future was snapped off her by the twist of her neck. She did not deserve to die in such bizarre circumstances. The vicious violence and sexual indignities and perversion together with the concealment of the crime and evidence are all matters of grave enormity. In my view, this case deserved serious consideration of the death penalty.

56. On sentence, there are a number of National Court cases where the offenders have been sentenced to death.

57. First is the case of The State v. Arua Maraga Hariki[7]; a decision of Salika, J who sentenced the prisoner to life imprisonment on one count of wilful murder while he imposed the death penalty on the second count of wilful murder. That was a case where the prisoner killed the deceased by squeezing his neck and suffocating him. The second deceased was found dead and his body found together with the first deceased. The trial Judge found through undisputed evidence that the prisoner was guilty of wilful murder of the second person.

58. Second is the case of The State v. Kepak Langai[8], where Jalina, J imposed the death penalty, where the deceased was chopped several times from the head in an ambush of the people the deceased was travelling with.

59. Thirdly, in The State v. Ben Simakot Simbu (No.2)[9], the prisoner went to the deceased’s house and asked her to give him a chicken on credit. The deceased refused and the prisoner killed her and her two year old child.

60. In The State v. Mark Poroli[10]; the prisoner killed a policeman who, with other colleagues, were ambushed and attacked by villagers who also destroyed the police vehicle. The deceased policeman was led away by his captors and shot on the face with a gun.

61. In The State v. Sedoki Lota and Fred Abenko[11]; this Court imposed the death penalty on the two prisoners in the exercise of its discretion after referring to two other cases which discussed the Court’s discretion in imposing the maximum penalty of death in wilful murder cases.

62. This was a case where the deceased woman was said to be a reputed sorceress who had killed the prisoner’s parents by witchcraft. The prisoners’ walked to the deceased’s village; entered her house whilst she was asleep; woke her up; tied her hands behind her back; blindfolded her then chopped her neck off with a bush knife. They pleaded guilty to a charge of wilful murder.

63. In that case, I referred to The State v. Jude Gena & 4 Ors[12]; and The Acting Public Prosecutor v. Uname Aumane[13]. In the previous case, Kapi, DCJ (as he then was) referred to the Court’s discretion in s.19 and said the ultimate decision to impose the maximum death penalty is the responsibility of the trial Judge and I agreed with his view in The State v. Sedoki Lota and Fred Abenko (supra).

64. All these cases are different but the trial Judge in each case considered that each killing was serious enough to warrant the death penalty therefore imposed the death penalty in each case (except in Jude Gena & 4 Ors) (supra).

65. While the facts in the present case are not the same as the facts in any of those cases, I consider that the present case is so serious that it deserves the ultimate penalty of death. In my view, such case as Manu Kovi (supra) are irrelevant and inappropriate therefore inapplicable to the present case.

66. However, I have noted some of the matters stated by the Supreme Court in Steven Loke Ume & 2 Ors v. The State[14].

67. As I have already adverted to, I have considered the submissions by the counsel for the prisoner. Because this is a wilful murder case which the State has called for the imposition of the death penalty, I have taken a lot of time to carefully consider the statement of the prisoner in the exercise of his right under s.539 and his counsel’s submissions.

68. The prisoner said sorry to the Court for what he did and said sorry to the family of the deceased. He admitted the crime and said this was his first time in Court. He asked for leniency.

69. I have considered the mitigating factors in favour of the prisoner together with his personal antecedents. He pleaded guilty in Court, but had voluntarily made confessions to police during the initial stage of their investigators. He smoked a roll of marijuana, but I do not find that he was affected by that and there is no evidence before me that he was severely or even moderately affected by it. In any event, I have addressed the principle of self-induced intoxication by alcohol which I consider is applicable to this case too because I am of the view that self induced intoxication by alcohol has the same effect, if not very similar effect as self induced smoking of marijuana.

70. The prisoner is a young man, 23 years of age with one prior conviction of stealing. That is not taken into account here. He had limited education and was never employed. However, he expressed remorse and co-operated with police on matters I have already canvassed. Can those matters bring back the young girl to life? Can the compensation bring the young girl to life? Of course nothing will resurrect the girl.

71. As I have also alluded to, it is my view that this is one of the worst cases of wilful murder. The prisoner sat on the road and watched the young 7 year old deceased girl collecting galip. He then walked over to her and led her away. The prisoner has never explained the motive for killing this young girl. As I said, the deceased was a very young girl, only 7 year old, and the prisoner just snapped her life out by one twist of the neck.

72. Over and above that, there were vicious violence used against the deceased, as if she was retaliating against the prisoner. And furthermore, sexual indignities and perversions were committed against her. The act of sodomy against the dead girl is something very hard to imagine. The prisoner is a Catholic so one should question his upbringing as a Catholic, that is, whether the teachings of the Catholic Church had any influence on him.

73. I have already expressed a view that there are serious aggravating factors present in this case. What I have alluded to above are very serious circumstances of aggravation in this case. I find that such aggravating features far outweigh the mitigating factors.

74. I can find no extenuating circumstances in this case which would reduce the seriousness and enormity of this horrific killing. I find no provocation, defence or otherwise, in this case and no duress or coercion. The degree of the vicious assaults leading to, and even after death, and the concealment of the body are matters that do not amount to extenuating circumstances. They are serious aggravating factors which make this case very serious indeed. I would not say the prisoner is an unsophisticated young man. He has had some level of education and he is of the Catholic faith. He is neither illiterate nor unsophisticated.

75. Wilful murder is a very prevalent violent crime in this country. The community of law abiding citizens is calling for tougher penalties in cases of unnecessary killing. This is a case where the killing was totally uncalled for and unnecessary. The community is concerned about serious violent crimes like wilful murder, rapes, robbery, etc., etc. There is therefore a need to deter this crime and all other violent crimes.

76. This is a premeditated, vicious, horrendous and cold blooded killing of a very young and innocent girl, who had not, in any way, provoked the prisoner. She was defenceless at the hands of the prisoner who acted as if he was a psychopath. In my view, the killing would fit the descriptions the Court referred to in Profitt v. Florida[15]- "The killing is ‘unthinkable’, ‘consciousless’, ‘senseless’, ‘pitiless’ and ‘unnecessary torturous’."

77. I find nothing in this case which lessens or reduces the prisoner’s culpability. I refer to page 35 of the judgment in Steven Loke Ume (supra) and cite what I consider to be applicable in the present case. Following the reference to Profitt v. Florida (supra) and Regira v. Peter Ivoro[16] (supra) is the excerpt I wish to refer to.

78. With respect, the above principles accord with my own views and I adopt and apply those principles in the present case. I consider that the prisoner’s culpability is so grave that the prisoner deserves the death penalty. The deceased was a child. She did not provoke the prisoner at all. The vicious attack prior to, and the sexual attacks after she was already dead are grave features of serious culpability.

79. Having considered and weighed all the mitigating factors and the aggravating circumstances in this case, I am of the opinion that this is a worst type of killing which necessitates the imposition of the maximum death penalty. This is the most cruel and horrendous crime I have ever come across, especially, involving a very young child. It is a horrific killing and one that cannot be erased from human minds easily. This kind of killing must be condemned by society, and a stern and decisive punitive penalty is warranted. In my view, this killing would be one of the worst types of wilful murder cases that the Supreme Court alluded to in Tony Imuna Api v. The State[17].

80. Finally, the prisoner not only committed a crime under the Criminal Code, he violated the Constitution as well. The only exception to the right to life is provided for in s.35 (1) (a) where a person can be deprived of his life in the execution of a sentence of a Court following his conviction of an offence which attracts the death penalty. Even the cruel and inhuman treatment suffered by the deceased also violated s.36 (2) of the Constitution.

81. Therefore in the present case, we have a young man who gave no consideration at all to the sanctity of life. He showed no respect at all for the dignity and value of a human life enshrined in the Constitution. I repeat that he snapped the life out of this young child, who had all her future ahead of her for no apparent reason. Does he deserve the maximum penalty of death?

82. The death penalty is not mandatory under the Code. The Supreme Court in Steven Loke Ume (supra) has put that issue to rest. The National Court still has a discretion on sentence. Instead of imposing the death penalty, a trial Judge may impose a life sentence or a determinate sentence. However, the sentence will depend on the circumstances of each case.

83. In the present case, the degree of cruelty exhibited by the prisoner on the young deceased is such that he cannot live his own life when he had snapped the life out of a young child, not forgetting the sexual perversions committed by him. It is appropriate, in my view, that the discretion of the Court be exercised in favour of the maximum penalty prescribed for this crime. Therefore in my opinion, it is only fair that the prisoner pays for this crime with his own life.

84. The judgment of this Court is therefore that the prisoner, Clarence Tema Mongi is sentenced to death.

85. In terms of s.597 Criminal Code, I order that Clarence Tema Mongi be returned to his former custody, then be transferred to Bomana Major Corrective Institution within 21 days from this date, and that, at a time and place to be appointed by the Head of State, acting on advice, he be hanged by the neck until he is dead.

Orders accordingly.

Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner

Addendum
On the application of the counsel for the Prisoner the Order for transfer within 21 days to Bomana was revoked on the basis that the prisoner has two further charges of rape and committals is nearing completion. But I order that CIS in Buka must ensure that the prisoner is kept in strict custody at all times and that under no circumstances will he be allowed out.

^[1] (2005), unreported, SC 789, 31st May 2005
^[2] (2004), unreported, N2546, 25th March 2006.
^[3] [1988-89] PNGLR 449 at 452 - 453
^[4] [1988] PNGLR 182 at 183
^[5] [1999] PNGLR 87 at 91
^[6] Supra at 88
^[7] (2003), unreported, N 2332, 3rd February, 2003
^[8] (2003), unreported, N 2463, 26th September, 2003
^[9] (2004), unreported, N 2546, 25th March, 2004
^[10] (2004), unreported, N 2655, 25th August, 2005 (Lenalia, J)
^[11] (2007), unreported, N3183, 1st October 2007 (Sevua, J)
^[12] (2004), unreported, N2649, 24th September, 2004 (Kapi, DCJ)
^[13] [1980] PNGLR 510
^[14] (2006), unreported, SC 836, 19th May, 2006
^[15] 428 US 249 at 255
^[16] [1971-72] PNGLR 374
^[17] (2001), unreported and unnumbered, (SCRA 16 of 2001) 29th August 2001 (Los, Sevua & Kandakasi, JJ)