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State v Binde (No.2) [2015] PGNC 256; N6146 (9 December 2015)

N6146

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 138 OF 2012

THE STATE

-v-

JACK BINDE
(NO.2)

Wewak: Geita J
2015: 2, 4, 9 December

CRIMINAL LAW – Wilful Murder –Prisoner found guilty after Trial – Prisoner aided and enabled a crime to be committed - A 70 year old woman and her two grandchildren, aged 3-4 years speared and hacked to death with a bush knife - Section 299 (1) Criminal Code.

CRIMINAL LAW – Wilful Murder –Prisoner found guilty of the same crime as the principal accused – Common intention present – Prisoner found guilty by operation of s. 7 Criminal Code.

CRIMINAL LAW – Wilful Murder – Revenged attack in cold blood – Prisoner under influence of marijuana drugs –The limited favourable mitigating factors outweighed by aggravating factors –Marijuana consumption self-inflicted -Serious aggravating circumstances – Prisoner not deserving of any mercy – When mercy not demonstrated during committing the crime.

CRIMINAL LAW – Sentence – Multiple murder – 40 years sentence for each count – Concurrent and Cumulative – Prisoner sentenced to 80 years – Prisoner precluded from receiving any remission and or considered for parole until after serving a term of 10 years or more.

Cases cited:
Papua New Guinea Cases

Alois Erebebe and Taros Togot v The State (2013) SC 1238
Avia Aihi v The State (No.3) [1983] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC 789
Simon Kama v The State (2004) SC 740
Steven Loko Ume and Others v The State (2006) SC 836
The State v Arua Maraga Hariki (No. 2) (2003 N2332
The State v Ben Simakot Simbu No. 2 (2004) N2546
The State v Bongede [2012] PGNC 69
The State v Clarence Tema Mongi [2007] PGNC 135
The State v Clerence Tema Mondi (2007) N3259
The State v Donald Poni (2004) PNGLR 17
The State v Genesis Simba No.2 (2015) N6015
The State v Gregory and Others (2011) N4381
The State v Kapai [2010] PGNC 222
The State v Mesuno [2012] PGNC 80
Ure Hane v State [1984] PNGLR 105

Overseas Cases

Fletcher-Jones NSWCCA (1994) 75 Aust Crim R 318

Counsel:

Paul Tusais, for the State
Johnson Malambaul, for the Prisoner

JUDGMENT ON SENTENCE

9 December, 2015

1. GEITA J: The prisoner was found guilty after trial on three counts of wilful murder of an elderly woman and her two grandchildren at Tamo village, West Sepik Province on 17 September 2011. The offence comes under Section 299 Criminal Code Act and attracts a maximum penalty of death sentence, subject to section 19 Criminal Code.

2. The brief facts as found on your conviction following the trial are these: On Saturday 17 September 2011 the prisoner and his two friends Sailas Tawo and John Yambi were headed for a remote inland hamlet/village of Kiopan, at Tamo No.3 village in Angoram District, East Sepik Province to investigate the destruction done to his property. The prisoner had earlier complained to several people about his property, including his gold digging equipment, he alleged were destroyed by some people from Tamo village whom he described as the mountain people or "arse tangets". The prisoner openly vowed to take revenge on Somoko Sitata. The prisoner was armed with him his home made gun whilst Silas Tawo was armed with a bush knife and a spear. Along the way to Tamo village they came across the three deceased persons sitting on the banks of a river nearby cooking their bananas: a 70 year old grandmother and her small grandchildren aged 3 and 4 respectively. They approached them under the disguise of greeting them and began attacking them. The prisoner stood watch with his home made gun and forced Silas Tawo to kill the three females or else be killed in return. The old lady was speared through her chest killing her instantly while the two little children were slashed with a bush knife from their head and neck downwards killing them instantly.

3. A prior conviction of being in possession of marijuana was recorded at the Wewak District Court in 2006.

4. When asked if you had anything to say on what type of sentence the court might impose upon you said you were sorry for what had happened and you apologised to the families of the deceased. You said this was first time in court and you asked for leniency from the court. You are aged 42 years and married with two children aged between 12 years and 10 years and you are now worried for their education and welfare as you do not think that your family members would take care of them. You asked the court to be lenient on you for the sake of your children so that you could serve only a shorter period of time and come home to take care of them.

5. The only matter in mitigating in my view was your contrition and perhaps your school age children now denied of their education as a result of this crime you have committed. Any other mitigation factors available to you however are grossly outweighed by your aggravating factor.

6. The matters in aggravation include this court finding you guilty of this crime after trial, three innocent people were murdered, the killings were brutal and vicious and in cold blood. You are not a first time offender with a marijuana related crime at the District Court in which you were convicted and sentenced to prison. This crime that you have committed is also related to the use of marijuana drugs.

7. Defence Counsel Mr. Malambaul for the prisoner conceded that notwithstanding the presence of two out of eight categories stated in the Steven Loko Ume's and Others v The State (2006) SC 836 case that would normally elevate the type of penalty into the worst type of wilful murder: Killing of a young child (2) in this case and the killing of two or more persons in a single act or a series of acts, the imposition of death penalty was not mandatory but was discretionary. Manu Kovi v The State (2005) SC 789 was briefly cited in passing as Steven Loko Ume case (supra) was considered most appropriate under the circumstances. He said courts must take into account all other factors including mitigation, aggravation, extenuating circumstances including those contained in a Victim Impact Statement where one is presented before the court. Mr. Malambaul echoed the sentiments expressed by the five member Supreme Court bench in Steven Loko Ume (supra) that the death penalty was the ultimate penalty hence all issues touching on legal, moral, ethical and customary considerations be taking into account.

8. Defence Counsel submitted that the triple murder was not pre-planned but was coincidental, adding that the prisoner and his friend were out and about minding their own business when they stumbled upon the victims and the crime committed unlike a situation where pre-planning was manifested. The State v Gregory and Others (2011) N4381 case referred to the court in support. A case of piracy on the high seas involving several men armed with firearms which resulted in the death of 8 people.

9. I am not sure if I should buy into Mr. Malambaul's submission on the absence of pre planning in this triple murder. Coincedence? Maybe yes but I do not think that the prisoner's criminal culpability will be greatly diminished in mitigation. He was out to take revenge on named persons and he was focused on who to target, unfortunately primed by the consumption of marijuana the previous night. Sadly Somoko Sitata's children and mother presented themselves. The 2 little children and their grandmother became sacrificial lambs so to speak in place of their father Somoko Sitata. The prisoners pent up grudge and anger avenged. To my mind all related submissions in the same vein is therefore considered superfluous and futile.

10. Mr Malambaul advanced that the prisoner was not a serial killer but an unsophisticated villager who upon learning that his gold extracting machine was destroyed by the 'mountain people' set out to find the perpetrators. Defence submitted that the court exercise its discretion and impose a term of 50 years for each offence to be made cumulative. I do not think Mr Malambaul is really asking for a cumulative sentence. I am sure he meant a concurrent sentence as the offences were all related in the same transaction. Alternatively he submitted for a life imprisonment as opposed to a death penalty.

11. The State went at great lengths to demonstrate that this crime could easily fall within the "worst category' with earlier decided cases of In Ure Hane v The State [1984] PNGLR 105; Steven Loko Ume and 3 Others v The State (2006) SC 836, Simon Kama v The State (2004) SC 740. The State also referred me to the following cases in which courts have imposed the maximum death penalty: The State v Ben Simakot Simbu No. 2 (2004) N2546; Alois Erebebe and Taros Togot v The State (2013) SC 1238; The State v Arua Maraga Hariki (No. 2) (2003 N2332 and The State v Clerence Tema Mondi (2007) N3259.

12. In view of State's submissions that this case could be considered in the worst category, the often quoted case in homicide cases, Manu Kovi v The State [2005] SC789 has not been referred to me. This is not fatal though. An all-out maximum death penalty was mooted by State as opposed to life sentence or a lengthy determinate prison term. It is tri ate law that the maximum death penalty is best reserved for the worst kind of homicide cases under section 299 (2) Criminal Code. (Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1983] PNGLR 92, Ure Hane v State [1984] PNGLR 105.The State's submission for death penalty however is understandable as it is convinced that all the attributes warranting such penalty are all manifested in the series of decided cases put before the court. Amongst them the killings being heinous and callous involving two innocent children and their 70 years old grandmother, all from the one family.

13. The State further submitted that loosely framed long prison terms were often subjected to remissions by one third resulting in shorter prison terms being served including the prisoners options for parole with the same results. Might I set the record straight here that those are irrelevant considerations and should not find their way into one's decision making process, save the curtailing of such factors in the exercise of one's discretion. To this end the State also referred me to an earlier case I did here in Wewak in which the prisoner in a wilful murder case was sentenced to 50 years with restriction on parole or remissions in the first 10 years. The prisoner in that case murdered his wife by dousing her with petrol and let her alight. (The State v Genesis Simba No.2 (2015) N6015.

14. Your case is unique in a sense that not all cases have the same facts and circumstances and must be treated on its own unique way. Having said that courts are always best assisted by earlier case precedents in order to maintain relatively and consistency in sentencing prisoners who commit this type of crime. In this case the prisoner was not the principal offender and obviously must be accorded that leniency. He was found guilty and convicted by operation of section 7 of the Criminal Code. That in my view should be the starting point in determining what type of penalty he ought to be paired with. To my mind all other aggravating factors including the death of three innocent victims with varying age differences from 3 years up to 70 years, the crime being violent and horrendous, the use of offensive weapons are ancillary considerations and are best reserved for the principal offender, whoever he is and whenever he is going to be arrested and charged. At the time of delivering this judgment, I am informed by the State Prosecutor that the principal offender has been arrested and now detained, awaiting formal charges. For his part in this crime the impact of marijuana has manifested itself as the catalyst for which he must be held accountable in serious aggravation. In the case of The State v Clarence Tema Mongi [2007] PGNC 135, the prisoner in a wilful murder case pleaded guilty to the murder and sodomising of a 7 year old victim. He was sentenced to the maximum death penalty.

15. Assuming that most of the attributes in the sentencing tariffs in category 3 of Manu Kovi are present in this case a sentence of life imprisonment would be considered most appropriate and befitting the crime: In this case the multiple killings were brutal, done in cold blood, the three victims were innocent, they were defenceless and harmless, dangerous or offensive weapons were used, two out of three were fairly young victims yet to reach the prime of their age, there was pre planning and a strong desire to kill the victims. The prisoner's saving grace in my view is that he was not the principal offender, hence escaped a sentence of death by the whiskers of his teeth. I am not saying here for the moment that his criminal culpability is any different to that of the principal offender. Legally he is culpable however technically he is not in my humble view, hence death penalty being the ultimate sentence should be reserved and used only in the case of principal offenders in this case. To this end I am reminded of a saying which goes like this: "The Law kills; but the Spirit gives life". Now having established that benchmark I ask myself what then should the appropriate punishment be in his case?

16. I next look at the prisoner's age: 42 years and see how courts have treated prisoner's falling within the same age group. In the case of The State v Kapai [2010] PGNC 222 the prisoner pleaded not guilty and was sentenced to 20 years; In the case of The State v Mesuno [2012] PGNC 80, the prisoner pleaded not guilty and was sentenced 34 years; In the case of The State v Bongede [2012] PGNC 69, the prisoner pleaded not guilty and was sentenced to 24 years. Now using the prisoners' age as a guide in relation to the supposed average life span in Papua New Guinea of approximately 55 years, any meaningful incarceration as a form of deterrence must take precedence here. From the three cases that I have researched on this circuit location a high point of 34 years appears to be the preferred starting head sentence in this case, taking into account all factors and considerations discussed above.

17. The most obvious question one would ask now is how can a mature man married with two children of his own, which he now pleads in mitigation for a reduction in his sentence allow such a killing to be carried out in cold blood?. He would either have to be mentally disturbed or be so overborne with taking revenge against all persons responsible for the destruction of his property who come from Tamo village or otherwise, irrespective of whether they were named or not identified. In his mind's eye as long as one hails from Tamo village or as they are commonly referred to as "arse tangets" they were the perpetrators. In light of court's findings of evidence of marijuana consumption the previous night by the prisoner and Silas Tawo, therein lies the answer: The impact of marijuana. One could make a case in pleading mitigation for the prisoner's sense of judgment impaired at the time of the crime. I think otherwise and will not accord him that presumption. If anything the voluntary ingestion of alcohol or in this case marijuana (emphasis mine) is an aggravating factor rather than a mitigating factor. (Fletcher-Jones NSWCCA (1994) 75 Aust Crim R 318). In short his mental state of mind prior to the revenge attack on the "arse tangets" was set and pre-determined. The consumption of marijuana was self-induced and so he must be held criminally liable for his actions in this crime. A classic case of serious aggravating circumstances. Furthermore your plea in mitigation for the welfare of your two children and old age mother has cancelled themselves out simply because when you committed that crime you had no regard for the two little children and their grandmother as though you have none of your own. Courts attitude towards accused persons who showed no mercy in the crimes they commit not deserving of any mercy. (The State v Donald Poni (2004) PNGLR 17.)

18. May I add in passing that whilst I agree with Mr Malambaul's contention that the prisoner be accorded all available factors in mitigation, aggravating, extenuation including those expressed in the victim impact statement all those considerations fall flat in my view when placed against the sanctity of and sacredness of a human life. No mortal man has the right to take away another mortal man's life save God All Mighty. Only God gives life and it is only Him that takes back that life. All other residual mitigating factors therefore grossly outweighed by serious aggravating circumstances in this case.

19. Now having settled on a starting head sentence at high point 34 years with life imprisonment and or a determinant long prison term also settled. I propose to employ the most appropriate sentencing I consider befitting this crime: Retribution and denunciation of the behaviour. I am therefore satisfied that this triple murder case is deserving of a determinative longer prison term of 40 years for each count of wilful murder.

20. I order that Count 1 be made concurrent to Count 2 which will in turn be made cumulative to Count 3 with pre-trial custody period deductions. I further order that the prisoner be precluded from any and all administrative considerations for a remission and or parole until after serving sentence of 10 years and beyond.

Sentence

Orders accordingly,
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner