State v Mal [2012] PGNC 219; N4591 (20 February 2012)

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CRIMINAL LAW – sentencing – Section 299 (wilful murder) – trial – fight between two groups of people – group attack on victim – use of offensive weapons –four offenders, markedly different degrees of involvement

Four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people. The third offender directly killed the deceased by striking him in the head with an iron rod; he had the greatest degree of involvement in the offence and was regarded as the principal offender. The first and second offenders did acts for the purpose of aiding the principal offender commit the offence, while the fourth offender counselled the others to commit the offence. This is the decision on sentence.

This was a judgment on sentence for four offenders convicted after trial of wilful murder.

1. CANNINGS J: This is a decision on sentence for four offenders convicted after trial of the wilful murder of Daga Nanas, a man aged in his 40s, who was killed almost instantly as the result of a fight between two groups of people at Four Mile Junction, on the outskirts of Madang town, late on the afternoon of Saturday 28 February 2009. The offenders are related. The fourth offender, Kathrine Mal, is the mother of the third offender, Emmanuel Ong, and an aunt of the first and second offenders, Lotivi Mal and Moses Mal, who are brothers.

3. The cause of death was asphyxiation brought about by the compound facial fractures, which led to airway obstruction. The third offender, Emmanuel Ong, was one of two persons (the other was not before the court) who directly killed the deceased. He was found to have hit the deceased on the back of the head with a three-cornered iron rod, causing him to fall, and then hit him again on his side and also smashed his jaw, causing the compound fractures of the mandible and maxilla, which led to asphyxiation, which was the cause of death. There was no lawful justification or excuse for his killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder.

4. The other offenders had different types of involvement. The first offender, Lotivi Mal, assisted in the killing of the deceased by attacking him with a knife, cutting him on the head, at the same time the deceased was being attacked by others. The second offender, Moses Mal, assisted in the killing of the deceased by threatening people with a pistol, preventing them coming to the aid of the deceased. Lotivi Mal and Moses Mal were found to have done acts for the purpose of aiding Emmanuel Ong to commit the offence of wilful murder and aided Emmanuel Ong in committing that offence. Each was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing the offence and to be guilty of it.

5. The fourth offender, Kathrine Mal, drove her vehicle to the scene of the fight while it was in progress, got out and shouted the words 'Kilim Ol!' or 'Kill him!' or words to that effect. Her conduct and words inflamed the fight and the attack on the deceased. She was found to have counselled other persons, including Emmanuel Ong, to commit the offence of wilful murder. She was deemed under Section 7(1)(d) of the Criminal Code to have taken part in committing the offence and to be guilty of it. Further details of the circumstances of the offence are in the judgment on verdict, The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457.

Lotivi Mal: The court has said I am guilty so I ask for mercy for all of us. What I want to say is in my pre-sentence report. Thank you. [In the PSR he indicates that he wants to make peace with the deceased's wife and children.]

Moses Mal: I accept the decision of the court. I was in the wrong place at the wrong time. I ask for the mercy of the court and a non-custodial sentence so that I can come out into the community and assist the deceased's wife and family.

Emmanuel Ong: I accept the decision of this honourable court and I respect the judgment of the court. I wish to express my remorse for the deceased's family. I am a father myself and I can understand how difficult life must now be for the deceased's children. I have recently graduated from university and my life is just beginning. I had a decent job and I was earning an income for my family. There is still a lot I can do to assist in the development of my community. If I am required to spend a long time in prison this will be a great burden on my wife and my son. Please consider me for probation.

Kathrine Mal: I respect the decision of the court. I was in the wrong place at the wrong time. In the period since my conviction I have made peace with the deceased's wife. My family has reached an agreement with her. She will receive compensation and land. She has been threatened by some of her own people who don't want her to make peace with us. Despite that, there is peace between us. I ask for the court's mercy to be shown to all of us.

8. A pre-sentence report for each offender was prepared by the Community Corrections and Rehabilitation Service. All the offenders are from Thalim village, Four Mile.

9. Lotivi Mal is 22 years old and single. His mother is Kathrine Mal's sister, Lydia Mal. He has a grade 10 education. He had casual employment with a road construction company over an 18-month period after he left school and has received a good employer reference. His health is sound. He has a strong family support network.

10. Moses Mal is 24 years old and recently married. He is Lotivi Mal's elder brother. He has a grade 10 education. He subsequently obtained a certificate in panel beating and spray painting at Ramu Vocation Training School. He had regular paid employment for nine months before this court case intervened and has received a good employer reference. His health is sound. He has a strong family support network.

11. Emmanuel Ong is 25 years old and married with one child. He graduated from Divine Word University in 2010 with a Bachelor of Business (Management). He was employed for almost two years by the National Development Bank as a graduate management trainee and then by a local bio-products company before this court case intervened. His health is sound. He has a strong family support network. He is highly regarded in the local community. Character references, attesting to his politeness, the respect he shows to others and his leadership qualities, have been provided by a wide range of reputable people in the Madang community, including university lecturers.

12. Kathrine Mal is 43 years old, a divorcee who has not remarried. She has five children, including Emmanuel Ong. The other four are still going to school, and they are living overseas. She cares for her two parents whose health is poor and who are heavily dependent on her. She has wide work experience and has attained a diploma in natural health therapy. She has over a period of 20 years developed a reputation as a highly regarded women's and youth leader in Madang Province. She is a certified trainer and has conducted many capacity building and train-the-trainer workshops. Glowing character references have been provided by former MP and community leader Kiup Bunag, President of Women and Christian Communications Lucy Kiki Buck LM, Maureen Hill MBE, ML and Madang community services advocate Alma Amepou. Her health is poor and has been for some years. She is diabetic (there being a strong family history of diabetes) and suffers from high blood pressure and anaemia. Other diabetic symptoms such as blurred vision and sleeplessness are increasingly problematic. She was admitted to hospital on 6 December 2011 soon after her conviction and remains hospitalised. A report by Dr Martin Daimen, Senior Medical Officer, Modilon General Hospital, attests to the seriousness of her condition. A recent report by Terence Kuaru, Clinical Psychologist, Modilon General Hospital, reveals that her mental health is also fragile. She suffers from depression, with suicidal ideation, which appears to have been exacerbated by this court case, particularly by her conviction. In a written statement attached to her pre-sentence report she complains that the Beon Jail commander denied her access to the natural foods that are required to be part of her diet in view of her diabetes, resulting in deterioration in her health to the point where she had to be hospitalised. Other senior correctional officers have also displayed a bad attitude. Widespread media coverage of her case has caused her to feel deeply ashamed. She feels that she may never do public work again or even show her face in public. She is not a threat to anyone. If she is given a non-custodial sentence she will leave the village for good. "My work which has been my life is effectively over as a result of this conviction. ... If the crime for which I have been found guilty warrants the taking of my life, then by putting me in prison, you [the court] will be achieving that outcome. If not, then I appeal for clemency and request for a non-custodial sentence", she states.

13. The pre-sentence reports also addressed the issues of compensation, forgiveness and reconciliation with the deceased's widow and family, which have proved to be quite contentious. After the close of submissions leave was granted to the State to present a written statement by the widow, Beben Daga, and her brother, Dawon Adaug. After considering the contents of that statement, together with the material in the pre-sentence reports and the part of the allocutus of Kathrine Mal that addressed those issues, I make these findings:

14. Mr Mwawesi submitted that a sentence of 15 to 20 years would be appropriate. He submitted that this is in line with category 1 of the guidelines on sentencing in the leading case Manu Kovi v The State (2005) SC789. The court should take into account the genuine expression of remorse by each offender. There was little or no premeditation in the death. Two of the offenders, Moses Mal and Kathrine Mal, were found not to have assaulted the deceased. Special consideration should be given to the previously unblemished record that each offender had in the community and in particular to the outstanding record of community service of Kathrine Mal. Kathrine is a very sick woman and any further incarceration is bound to see a serious deterioration in her health. The circumstances of the death also amount to a mitigating factor. It was a group fight that erupted after longrunning tension between two families.

16. Mr Tamate took issue with the defence's categorisation of the case under the Kovi guidelines. He submitted that it was a gruesome wilful murder, the deceased suffered multiple injuries and there was a strong intention to kill. The most that the State would concede is that it was not a worst case scenario, so the death penalty was not sought. However, it was a category 3 wilful murder and therefore life imprisonment for each offender was warranted. The offer to pay compensation should not be given a lot of consideration; otherwise the court will be encouraging offenders to buy their way out of long prison sentences. As for Kathrine Mal's poor health, this is not contested by the State, but nor is it a reason to give her a lenient sentence. She can be sentenced with light labour only. She is entitled to proper medical care while she is in custody. This has already been accorded to her and that will continue to be so.

17. To determine the appropriate penalty I will adopt the following decision making process:

18. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided ... a person liable to death may be sentenced to imprisonment for life or for any shorter term.

19. Wilful murder is one of only four crimes that attract the death penalty. The others are treason (Section 37), piracy (Section 81) and attempted piracy (Section 82). For other homicide offences (murder, manslaughter and infanticide) the maximum penalty is life imprisonment.

20. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: 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).

21. In Kovi a man who stabbed his wife to death on a PMV in Port Moresby had his appeal against a sentence of life imprisonment dismissed. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years
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 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.	Life imprisonment
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.	[No details provided]	Death

22. In Ume three men were convicted of the payback killing of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured, raped and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, eg suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender's degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped. As to the facts that would warrant the death penalty, and without being exhaustive, the Supreme Court suggested:

23. I will apply the guidelines from those two cases to arrive at a starting point. As for the Kovi guidelines, the submissions of both the defence and the State are rejected. This is not a category 1 case (which was the defence's submission) as none of the offenders pleaded guilty, weapons were involved and it cannot be said that there was no strong intention to kill. It is not a category 3 case (which was the State's submission) as there are some mitigating factors, which are not rendered insignificant by the gravity of the offence. Because the deceased was killed during a group fight I think it would be unfair to describe his death as a 'cold blooded killing'. I agree that it was not a worst case type of wilful murder, so category 4 is ruled out. That leaves category 2: there are both mitigating and aggravating factors; though the death was not planned or premeditated, there was a strong desire to kill.

24. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. Therefore the starting point is 20 to 30 years.

25. I have sentenced offenders for wilful murder in six recent cases, summarised in the following table.

No	Case	Details	Sentence
1	The State v Moses Nasres CR 1365/2006, 20.04.08, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.	Life imprisonment
2	The State v Isak Wapsi (2009) N3695, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.	25 years
3	The State v Chris Baurek CR 146/2009, 26.05.10, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bushknives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years
4	The State v Seth Ujan Talil (2010) N4159, Madang	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.	30 years
5	The State v Joel Otariv (2011) N4409, Madang	Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.	Life imprisonment
6	The State v Mathew Misek (2012) N4561, Kimbe	Guilty plea – a man deliberately killed his wife by cutting her on the head with a bushknife, causing instant death – immediately prior to the attack the offender had an argument with her father over payment of bride price.	Life imprisonment

26. To determine the head sentence for each offender I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the low end of the starting point range or even below it. The more aggravating factors present, the more likely the head sentence will be at the upper end of the starting point range or even above it. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important. The circumstances of the present case will also be compared to those in the cases referred to in the table.Each offender must be sentenced in a way that reflects the nature and extent of his or her involvement in the crime and his or her personal circumstances, but before considering them individually there are some mitigating and aggravating factors that are common to each, which need to be noted.

29. I will deal first with the third offender, Emmanuel Ong. He directly killed the deceased by striking him in the head with an iron rod and smashing his jaw. He had the greatest degree of involvement in the offence and must be regarded as the principal offender. I reiterate that I am paying close attention to the degree of involvement of each offender. Mr Tamate suggested that as the four offenders had been convicted of the same offence they should all get the same sentence. I do not consider that that is a proper way to sentence offenders who clearly have had different degrees of involvement in the crime. The better approach is that outlined by the Supreme Court in Ignatius Pomaloh v The State (2006) SC834: when an offence is jointly committed, each offender's sentence must reflect his or her degree of involvement in the crime. Emmanuel Ong is guilty of a vicious and savage assault with a lethal weapon, which caused the almost instant death of the victim. I take into account all the mitigating factors that are common to all offenders. I have carefully considered the many fine things said about him in the character references. He is an educated and intelligent man. He spoke passionately and eloquently in his allocutus. The concern he expressed for the welfare of the deceased's wife and children appeared to be genuine. The deep concern he has for his own wife and child is understandable. However, the overriding consideration is that he has been convicted as the principal offender in a vicious and savage murder and he must be subject to a sentence that fits the severity of that crime. He did not plead guilty so he does not get the benefit of offenders such as Wapsi and Baurek who were also convicted of vicious and savage murders. He deserves a sentence at the upper end of the starting point range and therefore I fix his sentence as 30 years imprisonment.

30. The first and second offenders, Lotivi Mal and Moses Mal, did acts for the purpose of aiding the principal offender commit the offence. They had a lesser degree of involvement, which should be reflected in their sentences. I will assess their degree of involvement as being equal to each other. They are brothers, their personal circumstances are very similar and I see no reason to differentiate their sentences. They deserve a sentence at the bottom of the available range. I fix their sentences as 20 years imprisonment each.

31. Kathrine Mal did not (unlike Lotivi Mal and Emmanuel Ong) directly assault the deceased. She did not (unlike Moses Mal) prevent others coming to the aid of the deceased. Her contribution to the death was nonetheless significant. She arrived on the scene and shouted an encouragement to others to kill the deceased. I consider that her degree of involvement should be assessed as equivalent to that of Lotivi Mal and Moses Mal. However, in her case there are two special mitigating factors that apply: her outstanding record of community service, in particular her record as a women's leader, and the poor state of her health. I fix a sentence of 17 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

31. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody, which varies for each offender, and will be reflected in the final sentences.

32. There would have been a good case for partial suspension of the sentences if the process of reconciliation with the deceased's relatives were complete. But that is not so. There is still tension in the community and a considerable amount of ill-will evidently still exists between the two family groups. It is not appropriate in these circumstances to suspend any part of the sentences. The favourable aspects of the pre-sentence reports, and the genuine attempts made by the offenders to reconcile, have already been taken into account in determining the head sentences.

33. The offenders and their family would be well advised to continue to work towards peace and reconciliation with the deceased's wife and family, while the offenders are serving their sentences, as this may be of assistance to them when they are eligible to apply for parole.

34. Lotivi Mal, Moses Mal, Emmanuel Ong and Kathrine Mal, having each been convicted of one count of wilful murder contrary to Section 299(1) of the Criminal Code, are sentenced as follows:

No	Name	Total head sentence	Pre-sentence period deducted	Resultant length of sentence to be served	Amount of sentence suspended	Time to be served in custody	Place of custody (CI)
1	Lotivi Mal	20 years	3 months, 2 weeks	19 years, 8 months, 2 weeks	Nil	19 years, 8 months, 2 weeks	Beon
2	Moses Mal	20 years	3 months, 2 weeks	19 years, 8 months, 2 weeks	Nil	19 years, 8 months, 2 weeks	Beon
3	Emmanuel Ong	30 years	3 months, 1 day	29 years, 8 months, 3 weeks, 6 days	Nil	29 years, 8 months, 3 weeks, 6 days	Beon
4	Kathrine Mal	17 years	3 months	16 years, 9 months	Nil	16 years, 9 months	Beon

Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders

National Court of Papua New Guinea

State v Mal [2012] PGNC 219; N4591 (20 February 2012)