State v Wirundi [2010] PGNC 34; N3994 (23 April 2010)

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CRIMINAL LAW – wilful murder – conviction on guilty plea- presence of prisoner - prisoner escaped from lawful custody before sentence – s.37 (5) Constitution – s.571 Criminal Code – sentence imposed in absentia.

CRIMINAL LAW – sentence – wilful murder – s.299 Criminal Code – prisoner killing second wife – deceased suspected of having extra-marital affairs – multiple injuries inflicted – death due to haemorrhage and haemopneumothorax - guilty plea – no prior conviction – sentence of thirty years IHL.

Avia Aihi v. The State (No.3) [1982] PNGLR 92
The Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424
Ure Hane v. The State [1984] PNGLR 105
Thomas Kavali v. Thomas Hoihoi [1986] PNGLR 329
Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment of the Supreme Court (Kapi, DCJ, Los and Jalina, JJ delivered on 13 June 1997)
Manu Kovi v. The State (2005) SC789
John Baipu v. The State (2005) SC796
Steven Loke Ume & Ors v. The State (2006) SC836
The State v. Joseph Ulakua (2002) N2240
John Konobo v. The State (2004) N2500
The State v. Frank Johnston (No 2) (2004) N2586
The State v. Justin Komboli (2005) N2891
The State v. Wilson Okore, CR No.584 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 6 February 2009 at Lae
The State v. Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae

Mr. Joe Waine, for the State
Messrs. Philip Leka Kapi & Peter Kumo, for the Prisoner

1. DAVID, J: INTRODUCTION: At the call-over conducted at the beginning of the March 2010 circuit, this case was confirmed to be run as a trial over a period of two days beginning on 17 March 2010. Upon arraignment, the Prisoner entered a plea of guilty to a charge that on 11 July 2004 at Wanka village, Ogulbeng, Western Highlands Province in Papua New Guinea, he willfully murdered Sarah Peter contrary to s.299 of the Criminal Code. A short adjournment was necessitated after which Mr. Kapi of counsel for the Prisoner confirmed the plea. After my reading of the depositions, I confirmed the guilty plea and entered a conviction against the Prisoner.

2. I heard submissions on sentence on 18 March 2010 then adjourned for sentence on 19 April 2010 at 01:30 pm.

3. The Prisoner escaped from lawful custody on 13 April 2010 in a mass prison breakout from the Baisu Correctional Institution. When the Court reconvened on 19 April 2010, no written confirmation had yet been received from the Baisu Correctional Institution regarding his escape. I adjourned to allow time for that information to be made available. I now have that written confirmation which is contained in a letter from the Acting Commander of the Baisu Correctional Institution, Senior Inspector John Eluh to the Registrar dated 20 April 2010. The Prisoner’s name appears at Item 8 of the Mt. Hagen National Court Remandees Escape List.

4. Another matter I raised on 19 April 2010 was that the defence should be given an opportunity to provide evidence of a substantial amount of compensation allegedly paid to the deceased’s relatives by the Prisoner and his community. This is because, when I heard submissions on 18 March 2010, the defence had alleged that compensation (belkol included) totalling K39,000.00 and 60 pigs was paid to the deceased’s relatives by the Prisoner and his community. The defence did not provide any documentary material to confirm that compensation was indeed paid because it had anticipated that the matter was going to be run as a trial as scheduled, but instead it turned out to be a plea.

5. Mr. Kumo appearing for the defence on 20 April 2010 confirmed that no such material has been received by his office either here or in the possession of Mr. Kapi of their Wabag Office who had the carriage of the matter last month. Mr. Kumo submitted that in any event, the Prisoner has missed the chance that has been accorded to him by the Court and the Court should therefore proceed with passing sentence in his absence.

6. I propose to now invoke s.571 of the Code to sentence the Prisoner in absentia because by his conduct, i.e, his non-appearance to receive his sentence due to his escape from lawful custody, he has waived his constitutional right to be present at his trial accorded to him under s.37 (5) of the Constitution. In other words, the Prisoner has impliedly consented to the continuation of these proceedings in his absence: Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; The State v. Frank Johnston (No 2) (2004) N2586; John Konobo v. The State (2004) N2500; The State v. Justin Komboli (2005) N2891

9. Sometime early in the month of July 2004, the Prisoner went to Lae and returned on 11 July 2004 arriving in Mt. Hagen at about 04:00 o’clock in the morning. The deceased was there. They jumped on another PMV to go to the village and they were dropped off at Wanka village, Ogulbeng.

10. As they were walking to the village, an argument developed between the Prisoner and the deceased. He accused her of having extra-marital affairs with other men. He punched the deceased and she fell to the ground.

11. The deceased then took out a knife and swung it at the Prisoner. The knife cut the Prisoner’s leg. There was a struggle whereby the Prisoner overpowered the victim and took the knife off her.

12. With this knife, the Prisoner cut the victim on her neck, right chest and the abdomen. One penetrated the right lung. Other cuts were also inflicted on her back which affected her spinal cord. The cuts were very severe that the victim died as a result of those injuries.

15. After his arrest, the Prisoner was in custody at Baisu Correctional Institution for 1 year and 7 months until he escaped in a mass prison breakout. He was recaptured on 14 August 2009. He had been in custody for a further seven months and three days as at 18 March 2010. He would have been in custody for a total of two years, two months and three days as at 18 March 2010. As I have alluded to earlier, the Prisoner escaped once again on 13 April 2010 in another mass prison breakout. He would therefore have been in custody for a total of two years and three months as at the date of his escape.

16. When the Prisoner was given the opportunity to address the Court he said the following.

17. The deceased was the second of the two wives he had. From the first marriage, he has five children. Out of those children, the eldest, a male attends a school in the Dei Council area, Western Highlands Province doing Grade 10. The next three children in the order of birth are females and they attend school at the Ogulbeng Primary School, Mt. Hagen, one doing Grade 4, another doing Grade 2 and the last of them in the Preparatory class. The last born is a male. He said he is worried about the wellbeing of his family; including the hardships to be faced in payment of school fees while he is in custody; and that his father is deceased while his mother is old and who in her state cannot assist the family.

18. The deceased was having an affair with a person infected with the HIV Aids virus while he was away in Lae so when he heard about this, he caught a PMV and came to Mt. Hagen. When he arrived in Mt. Hagen, he took another PMV to go to his village.

19. He asked the deceased about the allegation to which she said: "my like." He got angry and hit the deceased causing her to fall to the ground.

20. While on the ground, the deceased took out a knife from her bilum and cut him on one of his legs. He pulled the knife off from the deceased, but during the struggle he got a cut to one of his hands. He then attacked the deceased using her knife inflicting cuts to various parts of her body.

21. The Prisoner attacked the deceased because she was having an affair with an aids victim. He said, had she not attacked him with a knife, he would not have retaliated in the way he did. He attacked her to save his own life.

22. The Prisoner further said; that he had not been in trouble with the law before this incident; that he was sorry for committing the offence; sorry to the deceased and her family; that about five days later, he paid to the deceased’s relatives belkol consisting of cash of K5,000.00 and two pigs; that after two months of the incident, his community paid to the deceased’s relatives compensation consisting of cash of K34,000.00 and fifty eight pigs; and that a total of K39,000.00 and sixty pigs has been paid to the relatives of the deceased as belkol and compensation.

24. Section 299 of the Code creates the offence and prescribes the penalty for wilful murder which is death. That provision is in the following terms:-

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death."

25. The death penalty is not mandatory, but is the maximum penalty that can be imposed. The Court has a considerable discretion whether or not to impose the maximum penalty when reading s.229 (2) in conjunction with s.19 (1)(aa) of the Code: see Steven Loke Ume & Ors v. The State (2006) SC836 (Kapi CJ, Injia, DCJ, Los, Hinchliffe & Davani JJ).

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

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

27. Because death is the ultimate penalty, it is reserved for the worst cases of the offence and to be decided on the facts of each particular case: Steven Loke Ume; Manu Kovi v. The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J).

28. Manu Kovi v. The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J) are two recent Supreme Court cases that give sentencing guidelines for wilful murder.

29. Before Steven Loke Ume, the Supreme Court in Manu Kovi examined and reviewed previous case precedents on sentencing tariffs for homicide cases including wilful murder and for this offence laid down guidelines placed under four categories which are summarised in the table below.

CATEGORY 1	DETAILS	TARIFF
Plea - Ordinary cases. - Mitigating factors with no aggravating factors.	- No weapons used. - Little or no pre-meditation or pre-planning. - Minimum force used. - Absence of strong intent to kill.	15 – 20 years
CATEGORY 2
Trial or Plea - Mitigating factors with aggravating factors.	- Pre-planned. - Vicious attack. - Weapons used. - Strong desire to kill.	20 – 30 years
CATEGORY 3
Trial or Plea -Special aggravating factors. - Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	- 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-mediated. - Strong desire to kill.	Life Imprisonment
CATEGORY 4
WORST CASE - Trial or Plea -Special aggravating factors. -No extenuating circumstances. -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	(None provided)	Death

30. In Steven Loke Ume, the Supreme Court, without being exhaustive, suggested that the death penalty may be imposed in the following types of cases:-

"1. The killing of a child, a young or old person, or a person under some disability needing protection.

2. The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager.

4. Killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery, theft, etc.

7. Offence is committed by a prisoner in detention or custody serving sentence for another serious offence of violence.

31. Counsel for the parties appear to be in agreement that the circumstances in which the injuries that were inflicted upon the deceased were done are such that this case should not fall under the worst category for this offence to warrant the death penalty. I have also considered the guidelines in Steven Loke Ume and concur with counsel.

32. As to the guidelines in Manu Kovi, counsel are at variance as to which category suggested there should apply in the present case.

33. Mr. Kapi for the defence submits that the present case should fall between category one and two as some elements of those categories exist in this case namely, there was no pre-meditation, weapon in the form of a knife was used and it was a vicious attack. Counsel submitted that mitigating factors that should count in favour of the Prisoner are; although this case was originally intended to be a trial matter and notices of alibi and voir dire had been filed, the Prisoner’s guilty conscious made him enter a guilty plea instead which in turn saved the Court and the State time and money in dealing with the matter as a trial; he had been somewhat provoked into attacking the deceased; he cooperated with the police by his admissions in the Confessional Statement and Record of Interview; he voluntarily surrendered to the police; he expressed genuine remorse; he had no prior conviction; compensation totaling K39,000.00 in cash and sixty pigs was paid to relatives of the deceased.

34. Mr. Kapi likened the present case to the case of The State v. Joseph Ulakua (2002) N2240 where the prisoner on a guilty plea for the offence of murder was sentenced to a term of 20 years for killing his wife after she ran away from him. The victim allegedly had adulterous affairs with several men in the prisoner’s own village. He therefore urged the Court to consider a sentence between sixteen to eighteen years.

35. Mr. Waine for the prosecution submits that the present case is much more serious than what the defence think it to be. The nature of the multiple injuries inflicted upon the deceased confirmed by the medical report confirms the viciousness and persistence of the attack upon the deceased by the Prisoner, counsel submitted. The penalty should befit the crime, counsel further agued relying on Avia Aihi v. The State (No.3) [1982] PNGLR 92 and Ure Hane v. The State [1984] PNGLR 105 to support that proposition. This is a case that should warrant a sentence of life imprisonment or alternatively a term of fifty years imprisonment counsel suggested.

37. In The State v. Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae, the prisoner was found guilty and convicted of the wilful murder of an innocent young man. The deceased there was abducted by the prisoner and his accomplices allegedly in retaliation for the death of a young man and cut with bush knives and axes all over his head, face and stabbed several times on his chest until he bled to death. The court found the case to be a worse case of wilful murder. It described the killing as heinous, senseless, brutal, barbaric and cold blooded. A sentence of life imprisonment was imposed.

38. In The State v. Wilson Okore, CR No.584 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 6 February 2009 at Lae, on a guilty plea, the prisoner was convicted of the murder of the deceased who was suspected of practicing evil sorcery upon his aunt which caused her to suffer drowsiness and severe headaches. The deceased and the prisoner’s aunt were colleagues. The prisoner ambushed the deceased near his house early in the evening while it was raining heavily when he went out of his house to wash. As the deceased tried to wash after undressing and attacked him with a long bush knife resembling a sword stabbing him several times to death in the process. The court described the attack on the deceased involved pre-planning and was ferocious and mercilessly driven by rage or hate over the superstitious belief that the deceased had caused or done sorcery upon the prisoner’s aunt causing her to fall ill. A sentence of fifty years imprisonment in hard labour was imposed.

39. In John Baipu v. The State (2005) SC796, the prisoner was convicted of murder on a guilty plea and sentenced to life imprisonment. His pregnant wife and father had died in the same year and he suspected that sorcery was involved. He then placed a complaint of sorcery in the hands of Village Court officials to investigate more than a year before he committed the offence and he made an undertaking not to attack any suspect. However, when he met his 70-year-old uncle who was one of the suspects, he cut his arms and legs with a bush knife and left him to bleed to death contrary to his undertaking. Upon review by the Supreme Court, the original sentence was reduced to twenty five years imprisonment in hard labour.

40. I have taken into account the circumstances leading up to the killing of the deceased and the nature of the injuries inflicted upon the deceased using a knife and consider that there are present in this case elements of categories two and three of the Manu Kovi guidelines. I will therefore consider imposing a sentence within the parameters of those guidelines subject to the exercise of my discretion under s.19 (1)(aa) of the Code.

41. A post mortem medical examination of the deceased conducted by one Dr. Madison Dat and assisted by mortuary attendant one Mathew Nanowa on 12 July 2004 at the mortuary of the Mt. Hagen General Hospital generally found that there were multiple knife lacerations all over the body. The specific findings of the post mortem are contained in the post mortem report dated 19 July 2004 and they are:-

42. The doctor’s conclusion was that the deceased suffered a lot of pain from the multiple knife wounds to her body before death due to haemorrhage and haemopneumothorax.

43. The photographs taken at the post mortem by police photographer, Constable Jason Tibau who is attached to the Regional Forensic Section, Mt. Hagen indicate some of the serious injuries inflicted upon the external part of the deceased’s body consistent with the findings contained in the post mortem report in respect of them.

44. Apart from those cases counsel have referred me to which I have read, I have also considered the sentences imposed in Ure Hane v. the State [1984] PNGLR 105 and Manu Kovi, cases involving husbands killing their wives with knives.

45. In Ure Hane, the prisoner, a twenty three year old lawyer working in the Office of the Public Prosecutor, a first offender was convicted and sentenced to life imprisonment which was the maximum penalty at the time for repeatedly stabbing his wife or de facto to death with two knives. The trial judge found that the case was amongst the worst type of cases for the offence he was charged with. He stabbed his wife at least thirty times. He then reported the matter to the police. He later pleaded guilty to a charge of wilful murder. He confessed to the killing and explained the circumstances under which he killed the victim. The trial judge who was presented with all the exceptional circumstances that clearly warranted special consideration, brushed aside those matters and penalised him heavily on the fact that he was an educated man and he should have known better. The Supreme Court held, inter alia, that the crime must warrant the penalty not the offender. Because of the special circumstances in his case, the Supreme Court upheld his appeal and a sentence of fifteen years imprisonment in hard labour was substituted.

46. In Manu Kovi, the Supreme Court considered an appeal against conviction and sentence of life imprisonment for wilful murder imposed by the trial court. The appeal against conviction was not pursued at the hearing. The prisoner attacked his wife in a moving passenger motor vehicle bus along a busy city street in Port Moresby, National Capital District with a small bush knife he had bought earlier that day and concealed under his clothes. The Appellant cut her repeatedly in full view of other passengers in the bus. She was rushed to the hospital, but died on the same day from loss of blood from the multiple stab wounds. The attack was over their eight year old daughter. The Appellant contended that the sentence was excessive in the circumstances in that the trial judge erred in not taking into account relevant considerations in his favour including his wife’s unfaithfulness whilst he was in prison. The Supreme Court held that the case fell under category three of the wilful murder cases it had earlier recommended in that case. The Supreme Court found that the trial judge did not err in exercising his discretion and therefore went on to dismiss the appeal and confirmed the conviction and sentence.

47. The mitigating factors which I take into account in the Prisoner’s favour in the present case are that; he acted alone; he cooperated with the police and made early admissions of his guilt which were recorded in his Confessional Statement dated 19 July 2004 and the Record of Interview dated 2 August 2004; he pleaded guilty; he is a first time offender; he is an unsophisticated villager; killing in a domestic setting where it appears the marriage was not working properly; there was provocation in the non-legal sense considering that he believed that the deceased was having extra-marital affairs one of whom he suspected of carrying the HIV Aids virus; he reacted in the way he did because the deceased assaulted him with a knife; no pre-meditation was involved because the knife he used to commit the crime was the deceased’s; and that he expressed remorse.

48. I have taken into account in the Prisoner’s favour the alleged payment of compensation.

49. I have also considered the welfare of the Prisoner’s family, but I consider that this is a matter that an offender should bear in mind before setting out to commit serious crimes using dangerous or offensive weapons such as in the present case for which a long period of sentence may be imposed if convicted: Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment of the Supreme Court (Kapi, DCJ, Los and Jalina, JJ delivered on 13 June 1997). In any event, an offender should not use his or her children to escape punishment: The Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424.

50. The aggravating factors which go against the Prisoner are that; this was a vicious and brutal attack as is demonstrated by the multiple injuries he inflicted upon the deceased; he instigated the assault by punching the deceased causing her to fall to the ground; the killing occurred in circumstances where the deceased was overpowered, her knife was removed and therefore she became defenceless or harmless, but the Prisoner persisted by stabbing or cutting the deceased a number of times; the circumstances of the incident demonstrate that there was a strong desire to kill the deceased; the killing involved the use of a knife, an offensive weapon; the prevalence of the offence; and it was in my view a cold-blooded murder as all wilful murders are supposed to be.

51. The number of mitigating factors and the aggravating factors appear to be on par, but I consider that the gravity of the offence in the present case warrants a penalty in the top range of category two. The sentence suggested by the defence relying on Joseph Ulakua does not befit the offence committed by the Prisoner in the present case in my view. That was a murder case while the Prisoner here has been convicted of wilful murder. I note however the trial judge’s remarks in that case that given the circumstances of the killing there, the prisoner could have been indicted for wilful murder, but for the prosecution opting for the murder charge. In both cases, suspecting wives of having extra-marital affairs resulted in their demise. Comparatively, the injuries inflicted in the present case far outnumber those in Joseph Ulakua and they clearly demonstrate an intention to kill. The sentence I propose to impose will have to be higher than that imposed in Joseph Ulakua.

52. Wilson Okore and John Baipu are sorcery related murder cases. Peter Gilgil Angara was a pre-meditated pay-back killing. The severity of injuries inflicted in the present case are comparable to those suffered by the victims in Ure Hane and Manu Kovi, but the killings there resulted from; marriage discord and the prisoner’s inability to meet traditional obligations in relation to his marriage in the case of Ure Hane; a dispute over a daughter of the marriage in the case of Manu Kovi. There was pre-meditation in both cases.

53. The killing in the present case was heinous, senseless, brutal, barbaric and as I have already said in cold blood. There was a blatant disregard for the sanctity of human life.

54. I have considered imposing a sentence of life imprisonment, but have hesitated to do that given there was no pre-meditation. I consider however that a head sentence of thirty years is appropriate in the circumstances of the present case. The period spent in custody awaiting trial and sentence totaling two years and three months will be deducted living twenty seven years and nine months to be served in hard labour at the Baisu Correctional Institution.

____________________________________________
Acting Public Prosecutor: Lawyer for the prosecution
Public Solicitor: Lawyer for the defence

National Court of Papua New Guinea

State v Wirundi [2010] PGNC 34; N3994 (23 April 2010)