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State v Amos (No.03) [2012] PGNC 289; N5073 (14 December 2012)

N5073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NOS. 692 OF 2011

THE STATE

V

SELMON AMOS & MISIALIS AMOS (NO.3).

Kokopo: Lenalia, J.
2012: 8th, 18th October &
14th, 26th November
& 14th December

CRIMINAL LAW – three counts of wilful murder – sentence after finding of guilty to a triple murder on the seashore of Tokarkar plantation-Tokua airport – criminal code section 299

CRIMINAL LAW – wilful murder – three counts – sentence – sentencing tariffs – killing on the high-seas becoming prevalent – deterrent sentences called for

CRIMINAL PROCEDURE – appropriate sentence – maximum penalty reserved for the worst type cases – legislature has not prescribed types of wilful murder cases that warrants death penalty – no universal sentencing principle can be applied in wilful murder cases – each wilful murder case is determined on its own merits – court's consideration of aggravating factors and extenuating circumstances – on the current case, special aggravating circumstances far outweigh mitigating circumstances – maximum penalty imposed – death.

Cases cited:

Goli Golu-v-The State [1979] PNGLR, 653
Avia Aihi (No.3) -v- The State [1982] PNGLR. 92
Ure Hane -v- The State [1984] PNGLR 105
The State-v-Ombusu (Unreported National Court Judgment of 17th February 1995
Ombusu-v-The State [1996] PNGLR. 335
Manu Kovi-v-The State (2005) SC 789
State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997
Steven Loke Ume & Ors-vv-The State (2006) SC836
The State-v-Arua Maraga Hariki (2003) N2332
The State-v-Ben Simakot Simbu (N0.2) (2004) N2548
The State-v-Mark Poroli (2004) N2655
The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381
The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010
The State-v-Seth Ujan Talil (17.11.2010) N4159
The State-v-Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment
The State-v-Wilson Okore, (6.2.2009) CR No.584 of 2006
The State-v-Peter Wirundi (2010) N3994
Tony Imunu Api-v-The State (29.08.01) SC684

Counsel

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the two Accused

14th December, 2012

1. LENALIA, J: On 14th of last month, the two accused were found guilty of a triple wilful charge under s.299 of the Criminal Code. The offence was committed at the seashore of Tokarkar Plantation at the Western end of the Tokua airport mangrove swamps, Kokopo District, East New Britain Province. The offence took place in the morning of 31st July 2008. There were three separate victims namely Koli Sapau, Nelson Koli and Lomki Wanain. The State alleged that because they acted in concert, they aided, procured and counseled each other to execute the triple murder.

2. The brief summary of the evidence upon which the two accused were found guilty is that, the three deceased named on the indictment (Koli Sapau, Nelson Koli and Lomki Wanain) were passengers on a banana boat which was reported to have capsized and sank at sea between the sea waters of Duke of York Islands and West Coast of Namatanai in New Ireland Province. A total of eleven witnesses were called including Kiliaon Kamlapar whom the Court accepted his evidence as an eye witness to the killing of the three deceased. The evidence of the other ten witnesses was purely circumstantial in nature.

3. The States evidence established that the two accused acted in concert with three other boys (who had not been arrested) to kill the three deceased. It was established that witness Kamlapar was with the first accused at Skowhegan Service station where he heard the first accused speaking to someone on a mobile planning how to execute the killing of the three deceased.

4. While at Skowhegan, Kiliaon met Willie, John and Robert. John was referred to by the key witness as "John Biket". Kiliaon stood behind the first prisoner and heard him asking Willie to go to Takubar to take the boys to kill Koli, Nelson and Lomki. The next day when the three deceased and the first accused left on the boat "Sparrow Fly" for West Coast of Namatanai, the prosecution evidence established that those three persons spent the night at Takubar Beach Resort area with the key witness in a house of one of Kiliaon's relatives.

5. When the Sparrow Fly boat left Skowhegan beach it sailed toward the passage way between Duke of York Islands and Kapkap plantation point, that is the point near the Tokua airport. When it reached Takubar Beach Resort area, it slowed down and diverted to the beach at the beach resort. It did that purposely to warn John Biket (aka Bighead), Robert and Willie. The key witness and those three others got on another boat, "Las Peles" and they followed the Sparrow Fly and on the way between Kakap point and Karawara Island, they reached the Sparrow Fly. Kiliaon's evidence is that, the first prisoner did not know that, he was on the Las Peles boat.

6. Under the guise of requesting for assistance, the Las Peles boat skipper requested for petrol because they did not have enough. Just before they diverted towards the swamps, Kiliaon Kamlapar was asked to skipper the Las Peles boat so he took control of skipping Las Peles. Before taking control of that boat, he was asked to wear a mask in case, the first accused should identify him. So they diverted towards the mangroves near the north-western end of Tokua airport. When they got to the mangrove swamps with the Las Peles boat coming after the Sparrow Fly they stopped the two boats and floated for some seconds negotiating through the passage to go in.

7. As they entered the edges of the mangroves, Willie asked Kiliaon to stop at a distance of fifteen metres which he did. While the boat was stationary, the witness saw Joe Dicks pointed the gun at Koli Sapau and short him at point blank range. He saw Koli fall down dead into the Sparrow Fly boat. Soon after that, he pointed the gun at Nelson Koli and also shot him. Lomki started to cry but Joe also shot him. They all fell into the boat.

8. The witness looked on and saw the first accused, Robert and Joe Dicks lift up the three dead bodies and buried them in the swamps amongst the mangrove trees. Then after the three men were shot, Willie asked Kiliaon not to tell anyone about the killing and what he had just seen. The time then was about 4 pm. The witness was requested to sail up to Maren village on the Duke of York Island where the first accused was dropped off. This witness and Joe Dicks and the others headed back to Takubar. The first prisoner then made his way into the sea and called out under the guise of seeking help by calling out at about 6.30 pm where he was rescued by villagers who mounted help by forming two teams. One went to the right hand side of Maren village while the other sailed by canoes to the left.

9. The one that sailed to the left recued the first accused the prisoner Selmon Amos. This prisoner told the villagers at Maren village that, the boat they were in capsized and three persons were either drifting on the sea or had been drowned. Something interesting about the two boats is that, those were never produced or at least have them available for the court to view. As well, the key to the Sparrow Fly boat was produced and tendered in Court as an exhibit. (See Ex. "F") (For the findings of facts, see the decision on verdict dated 14th November 2012 at paragraph 88 at pages 19 to 20).

10. One of the findings of facts found by this Court is the issue of how the key to the Sparrow Fly boat get into the hands of witness Kiliaon Kamlapar. (See the decision on verdict dated 14th November 2012 at pages 19 to 20 paragraph 88). On the basis of the evidence adduced by the prosecution and the defence, the court found the two accused guilty on the charges of wilful murder as they conspired procured and planned the killing of the three deceased in terms of Section 7 and 8 of the Criminal Code.

11. In law, principal offenders caught by ss.7 & 8 of the Criminal Code can be sentenced to terms of penalty as principal offenders. The offence of wilful murder is defined by s.299 of the Criminal Code as follows:

(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.

12. The State invoked ss.7 & 8 of the Criminal Code in relation to parties to offences and offences committed in the prosecution of some common purposes. Section 7 of the Criminal Code defines participation in offences in the following terms:

"(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission."

Addresses on Allocutus

Selman Amos

13. On his allocutus, this accused said he respects the court's ruling on verdict but he according to his conscience, is innocent. No remorse was expressed.

Misialis Amos

14. This accused said, he has been found guilty for nothing. He said his accuser is the person with whom he had a dispute about the land and he is innocent. He said, the deceased are relatives of the first witness Kiliaon Kamlapar and because they had grudges with him (prisoner) and his line, the allegation was a set up due to grudges over land dispute issues over a plantation.

Defence Address on Sentence

15. Defence counsel, Mr. Kaluwin made a long address on sentence. His submission relates to the findings that were made by this Court on 14th November this year where the two accused were found guilty. Counsel submitted that, the first witness is an accomplice and he should be investigated and charged with the same offences.

16. Counsel even suggested that, this Court should make an order for the same to be investigated and charged for the similar offences brought against these two prisoners. Counsel submitted that this case is not the worst type case and thus does not warrant imposition of the maximum penalty.

17. On the Impact Statement, counsel argued that, such report does not contain anything bad about the two accused and also suggest that a term of years would be proper and the court should consider such recommendations.

Prosecution Address in reply

18. Mr. Rangan of counsel for the State submitted that, the issue for the court to decide on is does this case warrant imposition of the maximum penalty? He highlighted the guidelines set by the Supreme Court in Steven Loke Ume & Ors v The State (2006) SC836. In that case, the Supreme Court set out 8 guidelines for sentencing in wilful murder cases. Counsel submitted that on the current case, the number of persons who lost their lives were three (3) and this Court should consider imposing stringent sentences on the two prisoners.

19. Counsel referred to those persons who made the Impact Statements saying those were people mostly related to the parties of this case and the Court should take into account the inhuman treatment by the two prisoners and in the manner they carried out the preplanning of this crime.

Application of Law

20. The maximum penalty for the offence of wilful murder prescribed by s.299 (2) of the Criminal Code is "death". When Papua New Guinea became an independent State on 16th September 1975, the maximum penalty for the offence of wilful murder was death. However in 1976 by an amendment referred to as the Criminal Code (Amendment) Act (Act No.2 of 1976), the death penalty was repealed and substituted with life imprisonment.

21. However, due to the rise of general law and order problem in the country after Independence, more particularly in the Highlands region where back then tribal fights were very common, the Parliament re-introduce the death penalty in 1991 by an amendment, the Criminal Code (Amendment) Act) Act No. 25 of 1991).

22. On the instant case, the two prisoners can either be sentenced to death or a term of years can be imposed for the offences they committed. Looking at the trends of sentences for homicide cases, particularly wilful murder, the Supreme Court case of Manu Kovi-v-The State (2005) SC 789 establishes that where a crime of wilful murder is classified as a 'worst type' case the death penalty can be imposed.

23. Later in 2006, in the case of Steven Loke Ume & Ors-v-The State (supra), the Supreme Court comprising of Kapi CJ, Injia, DCJ, Los, Hinchliffe & Davani JJ set out eight (8) considerations where the maximum penalty can be imposed on wilful murder cases. In the above case 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.

3. Killing of a leader in government or the community, for political reasons.

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

5. Killing for hire.

6. Killing of two or more persons in the single act or series of acts.

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

8. The prisoner has prior conviction(s) for murder offences."

24. The prisoners' case fall into consideration 6 on the above suggestions. 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).

25. Section 19 (1)(aa) is in the following terms:

"19. Construction of provisions of Code as to punishments.

(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; ...."

26. 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 & Ors-v-The State (supra), Manu Kovi-v-The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J).

27. In earlier cases, the principle for sentencing in wilful murder cases were enunciated in cases such as Goli Golu-v-The State [1979] PNGLR, 653, Avia Aihi (No.3) -v- The State [1982] PNGLR. 92 and Ure Hane -v- The State [1984] PNGLR 105. The principle enunciated in the above case is that, the maximum penalty should be reserved for the most serious instances of offences under consideration. This means that, the maximum penalty should only be imposed in those cases where they are categorized to be the "worse type case" encountered in practice.

28. In homicide cases, and any other cases, Judges have often said that, the penalty to be imposed must fit the crime committed. It is hard for the court to describe the manner under which the two accused executed the death penalty upon the three innocent victims in this case. In this country, since the reintroduction of the death penalty, a number of prisoners have been sentenced to death.

29. For instance, in Hure Hane-v-The State [1984] PNGLR 105, Bredmeyer, J; set out eight (8) categories of serious wilful murder which can be categorized as worst type killings. They include:

➢ a wilful murder committed in the course of committing

thefts, robbery, break and enter or rape,

➢ wilful murder of a policeman or prison officer acting in

execution of their duties,

➢ wilful murder done in course of resisting arrest or

escape from lawful custody,

➢ wilful murder of person in police or court custody,
➢ a payback killing of completely innocent person,
➢ a second or third murder,
➢ a wilful murder committed by a person having a long

record of violence, wilful murder of VIPs.

30. Since the reintroduction of the death penalty in 1991, a number of accused offenders have been sentenced to death. The first of those cases where the death penalty has been imposed is The State-v-Ombusu (Unreported National Court Judgment of 17th February 1995). That was the case where Doherty; J. imposed the death penalty on the accused, a man from Popondetta for wilful murder.

31. On appeal by the appellant in that case, the Supreme Court comprising of five men bench upheld the appeal in both conviction and sentence for rape and wilful murder were quashed on technical grounds only, (See Ombusu-v-The State [1996] PNGLR. 335).

32. The next case where the death penalty was imposed in this jurisdiction after the re-introduction of the death penalty in 1991 was in The State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997) where Woods; J. sentenced the three accused to death for what His Honour in that case considered to be one of those worst type cases. The three appellants appealed, against both convictions and sentences of death, after grant of legal aid by the Public Solicitor a Supplementary Notice of Appeal was filed on 23 July 1997 in which they appealed against conviction only.

33. The Supreme Court consisting of Amet; CJ: Kapi; DCJ: (as they were then) and Sevua; J: dismissed the appeal against conviction only, (see Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State SCRA 10 of 1997 decision dated 4 May 2000). The appeal against sentence under the original notice of appeal could not proceed before that bench because it was not clear from the supplementary notice of appeal whether the appellants had abandoned their grounds of appeal against sentence.

34. The appeal against the sentence was finally determined on 19 May 2006 by a five (5) member Supreme Court bench comprising of Kapi CJ; Injia DCJ; Los, Hinchliffe & Davani JJ. The appeal was allowed and the death sentences imposed on each appellant by the National Court in Kimbe on 7 February 1997 were quashed.

35. In most recent wilful murder cases, the death penalty have been imposed in The State-v-Arua Maraga Hariki (2003) N2332, Salika, J; (as he then was) imposed the death penalty on an offender who killed two young men with whom he had been drinking with during the night the offences were committed. The prisoner strangled the two deceased by their necks.

36. Evidence did not directly show that he killed both persons but only one of them. The court found by circumstantial evidence that the appellant had also killed the other deceased as well because the evidence pointed to such conclusion.

37. Then in The State-v-Ben Simakot Simbu (N0.2) (2004) N2548, Kandakasi; J sentenced the accused to death for a double murder of a mother and her young child. The offences took place on 19 July 2002 in Vanimo, Sandaun Province. The accused in the above case went to the victims block and requested to get a life chicken on credit basis so that he could pay for it later whenever he got the money.

38. The victim refused and the accused repeated his request the second and third time. On the third time, when the adult victim refused, the accused grabbed her and forced her down to the ground and thereafter, he forcefully had sexual intercourse with her. After having sex with the victim the accused got a piece of iron and hit her across her head causing instant death. He got the same piece of iron and hit the child on its head. The child died instantly as well. The trial judge found that the killing in the above case was in the worse type category.

39. In that same year (2004) in The State-v-Mark Poroli (2004) N2655 at Mendi in Southern Highlands, this court sentenced the accused to death for wilfully killing a policeman on duty. He pleaded guilty to the charge. The killing was one of those most serious cases. What happened in that case was that there was a shoot out between police and the people who were gathering for 2002 election campaign. The offence took place between Koroba and Tari in the Hela Province. The victim in that case was a policeman who was on duty together with a number of police personnel who provided escort for an intending candidate. After the shoot out, a relative of the accused was shot dead.

40. When the police vehicle was returning to Tari, the tyres got punctured and the police escort fled on foot. Some of them including the victim spend the cold night in the bushes because it was dark. Then early in the morning, the accused and his men found the victim and took him to a hill on a little cliff and the accused and his men asked a pastor to pray for the victim. After the pastor prayed, the accused asked the deceased to say his last prayer and he stood less than a meter away from him and fired a shot right into the forehead of the policeman. He died instantly.

41. In the most recent cases in this Province in that of The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381 a multiple wilful murder case of eight (8) victims who were killed on the sea between Duke of York islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province.

42. The court in that case found that, the first accused had been upset with the owners of the boat Palex in regard to an incident that occurred back home where one of his relative was severely injured. Due to that, he then conspired with the other co-accused who set up a plan to ambush passengers of the boat called "Palex".

43. When the said boat sailed to the point at Makada Duke of York Islands, the two boats carrying the offenders waited and eventually ambushed the boat and all its eight passengers were shot and the bodies were thrown away into the sea. All the five (5) accused were sentenced to death by Sawong J by hanging until they die.

44. In The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010, the co-accused of the above case, he was also found guilty and sentenced to death by hanging until his death. The presiding Judge, Maliku, AJ was also of the view that, the case was one of the worse type case warranting the death penalty.

45. It is trite law that the maximum penalty ought to be reserved for the worst type cases encountered in our criminal practice. What remains for the court to consider is whether the cases before me warrant imposition of the maximum penalty. As alluded to earlier, the highest penalty the court can impose for the offence of wilful murder is death.

46. According to the kinds of serious wilful murder cases listed in Steven Loke Ume & Ors-v-The State (2006) SC836, the case before me would fall into category 6 because it was the case where more than two persons were wilfully murdered. As I found those were three innocent persons. The killings in the circumstances in the case before me were deliberate and calculated wilful murders which involved some elements of pre-planning on the part of the two accused. There was no respect for the lives of the three deceased in the present case.

47. There are other wilful murder cases where Judges of this Court have imposed terms of years. For instance, in The State-v-Seth Ujan Talil (17.11.2010) N4159, Cannings, J imposed a sentence of 40 years for a double murder committed during a mediation proceeding. Seth Ujan Talil was convicted after trial of two counts of wilful murder. The two deceased were brothers aged 35 and 42 years respectively. They were violently attacked by a group of men, which included the offender, at a mediation gathering at Gonoa village in the Madang District on 19 January 2006. The doctor found that the cause of death in each case was haemorrhagic shock due to multiple knife and axe wounds.

48. 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 in that case 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". The offender was sentenced to life imprisonment.

49. In The State-v-Wilson Okore, (6.2.2009) CR No.584 of 2006, Unreported & Unnumbered Judgment the same Judge imposed a term of 50 years for the offence of wilful murder. It was a case in Lae where the offender pleaded guilty to 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.

50. As the victim was trying to wash after undressing the offender 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.

51. In The State-v-Peter Wirundi (2010) N3994, the prisoner was charged with the wilful murder of one of his wives. Early in the month of July 2004, the accused went to Lae and returned on 11th July the same year. Upon arriving in Mt. Hagen at about 04:00 o'clock in the morning, he found the deceased in town. After they talked, they jumped on a PMV vehicle to go to the village and they were dropped off at Wanka village, Ogulbeng.

52. 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. The deceased then took out a knife and swung it at the prisoner. The knife cut the accused's leg. There was a struggle whereby the offender overpowered the victim and took the knife off her.

53. 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. David, J sentenced the offender to 30 years imprisonment.

54. In The State-v-Ambrose Lati (2009) N3740, a case of wilful murder before Yalo, A/J in Wabag, Enga Province where the prisoner shot his step-son with a gun. Lati had been waiting and hiding some fifteen (15) meters downhill behind Jumbo's house (the victim). As the victim approached the accused, he shot dead his step-son. The offender fired the first shot at close range but missed his target. He fired the second shot from the same position but again he missed his target. He hit his target with the third shot. The deceased fell dead on the spot. The medical report indicated that the bullets entered the left side of the deceased's skull and exited out the right side cleaning out the brain tissues.

55. In Tony Imunu Api-v-The State (29.08.01) SC684 (Unreported Supreme Court judgment the Supreme Court comprising of now retired Judges, Justice Los and Justice Sevua and Kandakasi, J considered an appeal against sentence of imprisonment for life.

56. It dismissed the appeal and held that the court below should have imposed the maximum penalty for wilful murder, death penalty. The Supreme Court's statement in that case is orbiter dictum, however it is relevant for me to quote and draw comparison of the circumstances in that case to the instant case. This is because the Court expressed a firm view that the National Court should not hesitate to where appropriate impose the death penalty. The Court said:

"We are of the opinion that this was a worst type of wilful murder. A 14 year old school student had his skull crushed in different places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view.

We therefore hold the view that the prisoner should have been sentenced to death. ... we consider that the National Court should in appropriate circumstances, consider that Parliament had amended s.299 of the Criminal Code for a purpose. In the light of the prevalent commission of wilful murder in the country, some of which can be categorized as very serious cases of unlawful killings, the National Court must not ignore the concerns of the community at large. We think the time has come for the National Court to seriously consider paying some attention to serious wilful murder cases, and where appropriate, impose the death penalty. We say this without in anyway trying to usurp the power and independence of trial Judges in the National Court".

The instant Case

57. The two prisoners mercilessly planned, procured and counseled with others to slaughter the three victims without fear of the law. Thought they did not use the gun by their hands, they procured and counseled Joe Dicks, Willie and John Biket (probably Bighead) to carry out the killing of the three victims. The three deceased did not deserve to be treated the way they were lured into the swampy grounds to be slaughtered and indecently buried in the swamps as the evidence established.

58. Eleven witnesses were called to testify on this trial. Most of them were examined and cross-examined as to the prosecution allegations of the alleged wilful murder and the motives for the killing of the three deceased. The deceased named on the indictment are, Koli Sapau, Nelson Koli and Lomki Wanain. A number of those witnesses including the first witness were cross-examined by Mr. Kaluwin of counsel for the two accused.

59. Except for the evidence by the first prosecution witness Kiliaon Kamlapar, the evidence of the remaining ten prosecution witnesses was all circumstantial. All the evidence pointed to the conclusion that the motive for the killing was economic interests because Koli Sapau had got K13,000.00 from Bernard Uriap. The two accused had planned, counseled and procured to kill the deceased persons.

60. I am mindful of the ever increasing community concerns about the prevalence of this particular nature of crime and their call to curb it. The prevalence of this crime makes the society think that life has become so cheap.

61. Particularly in this Province where there are more homicide offences as indicated by the records in our Criminal List in the National Court Registry Office here in Kokopo. The Court's response to such community concerns must remain objective. More importantly justice in each case is determined on its own merits, not otherwise.

62. In the instant case, the prisoner's pitiless and selfish motives had pushed them to the extent where they had no respect for the dignity and the sanctity of the life of the three deceased. Despite a court of competent jurisdiction finding them guilty after a full trial where they had the opportunity to test the State's evidence and rebut the evidence given against them, the two prisoners maintain their innocence. They both appeared to be unsympathetic for what they are accused of.

63. Crimes relating to economic interests, and particularly crimes that we read or hear about occurring in other parts of the world such as daring daylight bank robberies or high jacking of aircrafts or kidnapping people for ransom and piracy have already landed on Papua New Guinea shores. These are very high risk crimes whose authors have no value for and no regard for the respect for the dignity and sanctity of human life.

64. I agree with the Supreme Court in Tony Imunu Api-v-The State (supra) that it is about time the primary Courts seriously consider and impose the death penalty on crimes of wilful murders to send appropriate stern and deterrent message. In any event, anyone comes before the Court for a crime of wilful murder done or committed under any circumstances, he or she faces the death penalty.

65. We hear and read about piracy in other countries. Piracy in banana boats is beginning to become prevalent in this country and before the practice gets out of hand, it ought to be stopped. Very recently in this Province, in The State-v-Gregory Kiapkot & 4 Others and The State-v-Kenny Wesley (supra) are recent examples of killing on the high-seas. They were sentenced to be hanged until they die.

66. The right to life is a fundamental right under the Constitution. That provision protects and preserves life and states that every person has a right to life. As such no body must deprive another person of his or her life because that life is protected by law. That was why the death penalty was reintroduced in 1991 such that s.299 of the Criminal Code fixes the maximum penalty of death.

Consideration as to what penalty should be impost?

Impact Statements.

John Cletus.

67. I have read through the impact statements. In case of John Cletus, he says the death of the father and son, Nelson Koli and his in-law Koli Sapau was a very painful experience for him and those affected and concluded by saying that, the passage between Kokopo and West Coast Namatanai is becoming economical and a tough penalty should be imposed. He expressed concern that, though the first prisoner and his son never had any grudges amongst them they were really surprised to hear of the inhuman treatment given to the three victims.

Jack Anton

68. In Jack Anton's case, he raised concern over the long time it took the case to come to the Courts. He says, the case almost died away but the Ombudsman Commission office assisted to reactivate the case. He to says that, because the passage through St. George Channel is becoming viably economical, this Court should consider a tough penalty against the two prisoners.

Jack Maita

69. The above is the Ward Recorder of his LLG. He said, he was a primary school kid when at the first prisoner's village when he was sort of mentored by prisoner Selmon Amos. According to Maita, he said, the first accused had done a lot for his community in terms of helping the youths as well as he had been a pastor and he asked the court to consider such previous good record of the first prisoner.

Ravit Kilala

70. Mrs. Ravit Kilala is the elder daughter of Selmon Amos. She expresses concern over looking after many children and says including her own and she says this will be a great burden for her and her family if the two prisoners are sent to jail.

71. The PNG Constitution protects and preserves life in such a way that no one must intentionally take it away like any ordinary commodity. Life itself is very valuable and once taken or lost, it is lost forever. Neither compensation, nor wealth will assist to restore it. Even if compensation had been paid by the two prisoners, it cannot reduce the gravity of this crime and it cannot restore the lives that haven lost: The State-v-Rex Lialu [1988-89] PNGLR 449.

72. Section 35 of the Constitution states:

"35. Right to life

(1) No person shall be deprived of his life intentionally except—

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv) in order to prevent him from committing an offence; or

(v) for the purpose of suppressing piracy or terrorism or similar acts; or

(c) as the result of a lawful act of war".

73. As can be seen from the above proviso of the Constitution, it states that no person has the right to end another person's life unless it is under the circumstances or exceptions set out under sub paragraphs (a) – (c). The Constitution is the Supreme Law of this country and it prohibits unlawful killing of a human being. There is no excuse for any killing that happens outside what is defined in s.35(1)(a)(b) and (c) of the Constitution.

74. The killing in the present case was heinous, senseless, brutal, and barbaric and as I have already said was cold blood killing and was deliberately planned. There was a blatant disregard for the sanctity of human life. Section 299(1) of the Criminal Code states that a person who unlawfully kills another person, intending to cause his death is guilty of wilful murder. This provision is made subject to other succeeding provisions. Section 299(1) prescribes the offence of wilful murder while Subsection (2) creates the penalty.

75. It says that the death penalty can be imposed on a person who commits wilful murder or who has been found guilty of wilful murder. The Court has considerable discretion to exercise its sentencing powers on crimes like this to decide on an appropriate penalty pursuant to Section 19 of the Criminal Code to impose life imprisonment or a term of years, depending on the merits of a case.

76. On this case, the two prisoners being the father and son were found guilty of wilful murder by virtue of s.7 of the Criminal Code. However the maximum penalty may not be automatic: Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State (supra). The Court may exercise its sentencing discretion under Section 19 of the Criminal Code however this discretion is not available where the law expressly provides otherwise as I have alluded to earlier.

77. Where a prisoner is found guilty of wilful murder it may attract the death penalty but the Court has a wide discretion to impose a lesser penalty of life imprisonment or any shorter terms taking into account the relevant factors and circumstances recognized in law. These include, among others, aggravating and mitigating factors and extenuating circumstances.

78. I have considered all aggravations and mitigations put before this Court. I have considered the terms of the four impact statements. I have considered all submissions by the defence counsel and that by the State Prosecutor prosecuting this case.

79. The Court has considered all such mitigating factors on one hand and the aggravations on the other. As alluded to earlier, this case falls into the last category in Manu Kovi-v-The State (supra) and the 6th category in Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State (supra) cases. I consider that the death penalty should be imposed on each prisoner.

80. For the foregoing reasons, I am of the view that the proportionate penalty for this crime that will befit this type of unlawful killing (willful murder) and the gravity of the offence warrants the death penalty. The Court sentences the two prisoners Selmon Amos and Misialis Amos to death.

81. In accordance with Section 597 of the Criminal Code, this Court orders the two prisoners to be held in custody at Kerevat Correctional Services until such time their sentences shall be executed at a time and place to be appointed by the Head of State, acting on advice, and that they shall be hanged by their necks until they die.

82. Warrants of commitment shall be issued reflecting the Court's sentence and the orders contained herein. The Court orders accordingly.

__________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the two Accused.