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State v Kapai [2010] PGNC 222; N4209 (19 February 2010)

N4209

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS . 470, 469, 471 472 OF 2005

THE STATE

V

BOAS KAPAI, JAMES MANGEKO, LIVAI AUSOMB & LESTER LIVAI

Wewak: Sagu AJ
2010: 19th February

CRIMINAL LAW- sentence – wilful murder – group attack- conviction after trial – killing ambush - aggravation of long outstanding land dispute appropriate sentence apportioned to part played in the commission of the offence.

Cases Cited.

Kaona & Kavoa v the State (2006) SC836
Hure Hane v The State [1984] PNGLR 105
State v Harua Marigi Hariki (2003) N2332
The State v. Ben Simakot Simbu (No.2) (2004) N2573
State v Mark Porou (2004) N2655
The State v. Kepak Langa (26/09/03) N2462
Manu Kovi v The State (2005) SC 789

Counsel

Mr. Umpake, for the State
Mr. Mawasi, for the Defence

DECISION ON SENTENCE

18 February, 2010

1. SAGU AJ. The Four Offenders were found guilty of the Wilful Murder of one Dion Waikole after trial. On the last day of the circuit Mr. Mawasi of Defence Counsel applied for a Pre sentence report and sought adjournment which was granted. Since May I have not been able to secure a circuit into Wewak to complete this case until now.

2. The four offenders were jointly tried and each found guilty of the charge of Wilful Murder under Section 299(1) of the Criminal Code Act. Subsection (2) of Section 299 provides that a person who commits wilful murder shall be liable to be sentenced to death.

ALLOCUTUS

3. On Allocutus the prisoners each stated that they had given their story to the Court already and that the court should make its decision. There is no degree of remorse expressed by any one of the Offenders. The Counsel for Defence indicated to Court that the offenders had decided to take that option contrary to his advice.

RELEVANT FACTS FOR SENTENCING PURPOSES

4. The relevant facts for the purposes of sentence are that on the 20th day of October 2004 between 8am and 9am, the Four Offenders armed with a shot gun set up an ambush in Joshua's cocoa garden and shot the deceased Dion Waikoli who was travelling with his wife Lynda, Joshua Waikoli, the deceased brother, Margret Waikoli, the deceased sister, Lemeck and the deceased young daughter Judith on the way to their vanilla garden. The four offenders were hiding behind the leaves of a bended tree branch waiting for the deceased and family to arrive. As they walked in a single file, Boas Kapai fired the shot from the gun in his possession from about fifteen meters in front of them. The deceased fell back wards saying the four prisoners had shot him. The prisoners after the shot fled and Joshua gave chase, armed with only a bush knife but the deceased called for him to return as he was already wounded. They took the deceased to the house in the village where he spoke out and named the four prisoners who had shot him. After two (2) hours Dion died. The body was taken to the Ambunti Health Centre for medical examination.

5. The body was examined by the Health Extension Officer of the Ambunti Health centre in the afternoon of the day of the murder. The medical report provides that the deceased suffered multiple wounds. Shot gun pellets completely destroyed the general internal abdomen organs and tissues. Pellets entered into the body on the left side of the deceased abdomen. The Deceased lost a lot of blood and developed acute serious heavy internal heommorridge and suddenly formed blood clotting in the abdomen and died as a result of the wounds inflicted by the gun shot.

At about Lunch time on the same day Jonathan, father of the deceased and his sister Margret reported to the Ambunti Police Station that the four prisoners had shot the deceased.

6. The four prisoners and the deceased family are all members of the same sub clan having come from the same family. They share the same great grandparents. Prior to the incident there had been a prolonged land dispute between the deceased family and the accused family. This dispute had not yet been settled when the deceased was shot.

RELEVANT LAW SENTENCE TARRIF & ETC.

7. The penalty provided for the offence of willful murder is death under Section 299(2) is:-

"A person who commits willful murder shall be liable to be sentenced to death. "

8. I asked both Counsel's assistance in determining whether the death penalty was in mandatory terms. Both Counsels conceded that it was a discretionary power and that the maximum is reserved for the worse cases of wilful murder. Mr. Umpake submitted that the maximum penalty of death is a discretionary one which is to be read in conjunction with the construction of sentence provided for in Section 19 (1)(aa) of the Criminal Code is relevant and it provides:

"(1) In the construction of this Code, it is to be taken that, except when it is expressly otherwise provided

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term."

9. The Supreme Court in Ume, Kaona & Kavoa v the State (2006) SC836 which was a full bench of the Supreme Court constituted by the late Kapi CJ, current Chief Justice Injia, Hinchliffe & Davani JJ considered this question and held:

" when s.299(2) is read on its own and in conjunction with s. 19(1)(aa), it is clear that the death penalty is discretionary. Since the amendment to s.299(2) in 1991, judges of the National Court have taken that position."

10. I am of the view that the death penalty under this section is a discretionary one. It is trite law that the maximum penalty is reserved for the worst case of willful murder.

11. Bredmeyer J in Hure Hane v The State [1984] PNGLR 105 laid down some situation where the death penalty could be imposed as follows:

1. any murder done in furtherance of theft.

2. any murder by shooting or by causing an explosion.

3. any murder done in the course of or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody.

4. any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting.

5. in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or a person assisting a prisoner officer so acting.**

12. The death penalty had been imposed in a few cases for example,

The State v. Ben Simakot Simbu (No.2) (25/03/04) N2573. Double murder of mother and child after rape of mother. Killed her when she refused prisoner's request for chicken on credit. He raped the mother, then took a piece of iron and hit the mother on the head killing her instantly. Then turned on her 2 year old child and hit her on her head and killed her instantly. State v Mark Porou (2004) N2655, Police Mobile Squad member transporting arrested suspect, stopped and attacked by villagers. Policeman hunted down, led away to be killed, allowed pastor to say last prayers for deceased, then allowed deceased to say his last prayers then shot him dead. The State v. Kepak Langa (26/09/03) N2462.Pastor shot dead with gun in ambush attack, in the presence of his three (3) children. Pay-back killings in cold blood.

13. Although the above National Court cases have imposed the death penalty for this offence of willful murder, however, the Supreme Court has expressed a more lenient approach to imposing the death sentence in more recent times in the case of Manu Kovi v. The State (2005) SC 789. When it laid down the categories of sentencing Tariff for all three types of homicide case, ie, Manslaughter, murder and willful murder; the Supreme Court here prescribed a term of life year imprisonment in situations where:

the killing is Brutal killing, Killing in cold blood-Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used-Killing accompanied by other serious offence. Victim young or old.-Pre-planned and pre-meditated.-Strong desire to kill.

IN YOUR CASE

14. This case is a little bit similar to the case of State v Kepak Landa (Supra) in which the deceased was gunned down in an ambush attack in cold blooded killing in revenge or what is known as a payback killing of another person's death arising out of tribal fighting in the Highlands; except that the killing in this case is not for revenge and tribal payback killing. However, it is similar for the offenders killed the deceased in an ambush.

15. In your case, you all set up an ambush, armed yourself with a dangerous weapon more particularly a gun and waited for the deceased to arrive. When the deceased and his family members arrived, you gunned him down. Boas Kapai was armed with the shot gun and pulled the trigger and fired the shot at the deceased on his lower abdomen which resulted in the deceased suffering multiple shot gun pellet wounds and he died a couple hours later from loss of blood from those wounds. You pre - mediated his death. He was unarmed and defenceless at the time, and was walking to his garden with his wife, child, sister and brother and you fired the fatal shot that killed him. You shot him in cold blood and you ran away. The shooting was done in front of the deceased wife, his young daughter and other relatives.

16. There was a difference existing at the time of the killing between your family and the deceased family over land. You decided to get rid of the deceased so you could take over the land in dispute.

17. Although Boas Kapai was the one who held the gun and fired the fatal shot, you James, Livai and Lester were with Boas at the time of killing and the Court found you equally guilty as your presence indicated you abetted and aided in the killing of the deceased Dion Waikole.

18. The National Court has passed the death sentence in a few cases as mentioned above. A few of these decisions are under appeal. I am of the view that this case is one that does not fall within the worse category where the death penalty can be imposed. The killing was pre-meditated and pre planned and done in cold blood of an innocent and harmless person by the use of an offensive weapon a shot gun in this case. I am of the view that this case falls within category three (3) as outlined in the Manu Kovi case that is a sentence ranging from 30 years up to life year imprisonment. I am very much guided by the principles as set down by the Supreme Court in the case of Manu Kovi (supra) and I am bound to apply these principles in this case.

19. I will now consider the factors for and against in determining the appropriate sentence that the Court will impose on you today.

Personal Particulars.

Ages of the prisoners: Boas Kapai is 38 years old,

James Mangeko 50 years;

Livai Ausomb 55 years:

Lester Livai is 33 years.

Education: they are either semi or illerate having reached only grade 6.

Employment: Nil villagers. Except for Livai, a carpenter and driver for the Ambunti Council.

Mitigating factors,

20. The prisoners are all first time offenders. They have never been to court and that they are semi illiterate. They are villagers. James is 50 and Livai is 55. The Defence Counsel submited that Livai is 65 years old, however, he produces no tangible evidence to support his argument in the absence of which I will treat Livai as a 55 year old man.

21. Aggravating factors are that, the killing was premeditated and executed by the group. The offenders have shown no remorse at all as indicated on the allocutus above. A dangerous weapon, a gun was used and the deceased was unarmed and defenceless at the time of the attack. The killing was done in front of his wife and child. The actual gun was in possession of Boas and they all waited for the deceased to arrive and Boas fired the fatal shot killing the deceased. The aggravating factors far out weigh any mitigating factors that may exist which is minimal here in this case.

22. It is clear law that, co-offenders require the same treatment when it comes to sentencing, if there is nothing warranting a different treatment. However, the co-offenders playing different roles in the commission of an offence warrant a different treatment when it comes to their sentence. An offender who plays a major role is liable to receive a higher penalty than the one who plays a lesser role. Likewise, if the personal antecedents of the offenders are different, they require different treatment.

23. The killing arose out of group that attacked the deceased with the common intention of killing him. There is no evidence to differentiate the role played by each appellant in the killing except for that Boas had the gun and pulled the trigger and fired the shot. However, you were all present altogether with Boas.

24. The appropriate sentence for each prisoner is determined by the role each played in committing the offence. Boas Kapai had the gun and fired the shot that killed Dion. I consider that the seriousness of the killing in the circumstances warrants a sentence of imprisonment for life. Accordingly, I make the following orders for sentence.

25. Boas is sentence to Life year imprisonment.

26. The other three prisoners James Mangeko, Livai Ausomb and Lester Livai were there aiding and abetting even though Boas fired the shot they all had a common purposes to terminate the life of the deceased. They are sentence to twenty 25 years imprisonment each to be served in hard labour. I take into account the age of James Mangeko and Livai Ausomb who are 50 years and 55 years respectively and treat that as special mitigating factor and reduce 5 years from the 25 years. Thus

Boas Kapai - Life year
James Mangeko: 20 years
Livai Asoumb : 20 years
Lester Livai : 25 years.
Less any time spend in pre- trial custody.

___________________________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence