N6796

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 736 OF 2015

THE STATE
V
BILLY SAPSI POKEA

Waigani: Kirriwom, J
2017: 3rd July

SENTENCE- Wilful Murder – Maximum penalty of death inappropriate – Circumstances did not warrant maximum or near maximum penalty – Determinate sentence justified on basis of de facto provocation – Lifetime HIV/AIDS patient – Full or partial suspension unsupported by PSR – History of violence and disrespect for authority- Prisoner has attitude problem – Imprisonment for 25 years in light labour.

Cases Cited:
Erebebe v The State [2013] SC1228
Goli Golu v The State [1979] PNGLR 653
In re Application for Enforcement of Human Rigths by Jerry Kui [2014] N5734
Manu Kovi v The State [2005] SC789
The State v Amos (No.3) [2012] N5073
The State v. Ben Simakot Simbu (No. 2) [2004] N2548
The State v. Gregory Kiaplot & 4 Others [2012] N4381
The State v. Hapot (No 2) [2016] N6452
The State v. Madiroto [1997] PNGLR 95,
Une v. The State [2006] N6452
Ure Hane v. The State [1984] PNG 105

Counsel:	
A.Kaipu, for the State
J. Javapro, for the Accused

REASONS FOR SENTENCE
3rd of July, 2017
1.	KIRRIWON J: Billy Sapsi Pokea of Mendi, Southern Highlands was found guilty and convicted of wilful murder contrary to section 299 of the Criminal Code.

2.	This case stemmed from an internal office disagreement between the prisoner and the deceased, a senior officer in rank to the prisoner on a Saturday morning of 5th July 2014 in the Office of the Foreign Affairs and Immigration Department situated in the Westpac Bank building along Waigani Drive where the murder took place. The disagreement was over what the deceased claimed or alleged as ‘prisoner watching pornography or porn movie in the office on his office computer’.

3.	The deceased was passing by the prisoner’s work station when he saw the latter watching porn movie on his laptop. He approached the prisoner and grabbed his laptop that was playing the porn movie and called another senior officer Samson Yambon, who was also in the office that Saturday morning, to be his witness for having caught the prisoner watching blue movies on his office computer in the office. And he made a big scene of it telling the prisoner that he would report him to the Secretary and the top management team on Monday and that he (the prisoner) will be given his red passport to go back to Mendi. Literally speaking, the deceased meant that he would report the prisoner and have him sacked and sent home.

4.	The prisoner’s plea to the deceased fell on deaf ears when the deceased took the laptop to his office with the prisoner following him to his office where he finally forcefully removed the laptop from the deceased’s grasp after a struggle with the deceased in the latter’s office.

5.	Sometime after the prisoner left the deceased’s office another officer, Daniel Tovakuta, who was also at work that Saturday heard noises and sounds of struggle and screams for help coming from the deceased’s office. He rushed to the door and discovered the door was locked from the inside and went around the side and saw through the glass panel wall both the prisoner and deceased engage in a scuffle. He also saw the deceased bleeding. He immediately raised the alarm by alerting Samson Yambon and both went to seek help from the security and to call the police downstairs.

6.	Police eventually arrived and they all returned to the scene of the struggle only to find the deceased already lying dead in a pool of blood and the prisoner also had already decamped. He was seen leaving the premises with blood all over his clothes and a knife tucked inside his trousers behind his back.

7.	Police picked up the prisoner several days later and charged him with wilful murder of the deceased. During the conduct of his record of interview he admitted the offence and explained what happened, how it happened and why it happened. This is all set out in my judgment on verdict. However in his trial he denied committing the offence but his admissions were put in evidence and appears to be sentenced.

8.	The medical report compiled from the post mortem examination by Dr. Seth Fose who carried out the autopsy at the Funeral Home at Erima on 7th July 2014 showed a total of 13 open cut or lacerated as well as incised wounds caused by what clearly appeared to be bush knife or machete on various parts of the deceased’s body including skull or head (3, on top of the skull), facial region (2, one on left cheek and one on left ear), mid-section of the body (2, one on right side of stomach and another on centre of the chest between the breasts), arms (3 on right and 1 on left) and legs ( 1 on right knee cap and I on left ankle).

9.	The cause of death was the result of excessive blood loss and brain incision wound due to multiple chop and incision wounds to the body from a sharp brush knife.

10.	There was also a sketch of human anatomy showing the precise spots where the wounds were located as found by the examining pathologist and also exhibited in the trial were photos of the body of the deceased as found lying on the floor with multiple cut wounds on his body.

11.	The law is that a person found guilty of wilful murder shall be liable to be sentenced to death. This is provided for under subsection (2) of section 299 of the Code.

12.	I heard submissions from both lawyers on sentence. Mr Kaipu for the State submits that the prisoner deserves nothing less than the death penalty. Mr Javapro on the other hand submits that a determinate term of sentence between 20 and 30 years imprisonment will be appropriate with part suspensions because of the special medical condition of the prisoner. I shall address both their submissions in my judgment.

13.	Prisoner spoke about himself at length which I recorded and concluded with a plea for suspended sentence. Consequently a pre sentence report was requested which I now have at hand. I shall address the report in my judgment where necessary but by and large the PSR makes no particular recommendation and leaves to the court to determine the appropriate penalty.

14.	There is however one inconsistency in the prisoner’s prior record where the PRS reports the prisoner as first offender while the Police Antecedent Report states the prisoner has a prior conviction for assault which was not denied and presently remains admitted.

15.	The prisoner gave a very long statement about himself, his family background, his education and his career life as Foreign Service officer. I have taken note of his personal history and background. He is 64 years old now, he was married with three wives two of whom died. However I now note from the PSR that all three wives had died from this same sickness the prisoner is suffering from. He has 7 children, five still in school, both primary and secondary schools in Mendi Southern Highlands. He is from Sumia village, Mendi in the Southern Highlands Province. He is a member of the SDA faith.

16.	Prisoner did his primary education and high school in Mendi High where he completed Grade 10. Then he attended UPNG and did Preliminary Year studies for matriculation. PSR shows that he was expelled from UPNG for assaulting a chef so he took up employment with the Police where he worked from 1984 to 1987 where he was also dismissed on disciplinary grounds for insubordination.

17.	His PSR further states that the prisoner then secured employment with Health Department where he worked from 1988 to 1991. He then re-applied to the university and was accepted so he enrolled for full-time studies which he took up from 1992 to 1995 and eventually graduated with a degree in Bachelor of Arts in March 1996.

18.	Following his graduation he worked with the Word Bank and later moved onto Foreign Affairs Department where he spent almost 20 years until this trouble.

19.	Since working with Foreign Affairs and Trade he served in many divisions of the Department including Immigration, Consular Privileges and Diplomatic Immunities Branch as well as in the Policy Section. He was a world traveller working with Foreign Service and had experience in most aspects of foreign affairs service in the various sections of the Department.

20.	In sentencing the prisoner I take particular note of the prisoner’s health condition. The medical reports provided from two medical clinics confirm the prisoner’s HIV status which is a lifetime disease or illness which requires regular check-ups and treatment with antiretroviral drugs. This sickness leaves him wide open to other forms of sickness and death because his body immune system is no longer active to protect him from any type of ailment. I have noted the dangers associated with non-compliance with his regular treatment and the difficulties he was placed in when the correctional services for sometime delayed him in according him his regular treatment.

21.	I have taken not of the provisions of the HIV/AIDS Management and Prevention Act of 2003 where the Act extensively provides for the protection of persons affected by the disease and the control of the spread of the disease. And in particular I am mindful of sections 6 and 7 of the Act on the fair treatment accorded to such persons. If one were to do some soul- searching on what could have triggered the prisoner to have reacted in the way he did, it goes to show the failure to appreciate clearly spelt out in the legislation on the treatment accorded to persons living with HIV/AIDS symptoms or infection both in the workplace and at home. The more heavy handed the manner of treatment over what may construe from one end of the equilibrium to have trivial that is blown out of proportion is likely to lead to far reaching imaginations that can be devastative and painful to absorb by one who is affected.

22.	In my view any sentence to be imposed here must take cognizance of the fact that the prisoner is subject of special class or group of persons classified as vulnerable and protected under the Act referred to and it must reflect that apart from considering the gravity of his offence or offending behaviour and the seriousness of the offence itself, be it a crime or misdemeanour.

23.	On allocates while expressing remorse for what happened, he reiterated what he told the police as his answer to question 27 while telling them of what happened and why it happened in that the deceased was not his enemy, they never had any differences between them, the deceased was not his immediate senior officer in his division where he was attached to but was a member of the management team, meaning he had the authority to influence the management decision on his future or continuing employment with the Department when he (the deceased) threatened to report him.

FACTORS IN MITIGATION AND AGGRAVATION

24.	In mitigation of penalty, I take into account the following:

(1)	 Prisoner’s cooperation with police following his arrest and his admissions to the offence during the record of interview.

(2)	 Expression of remorse

(3)	 Initially I had contemplated treating the prisoner as a first offender given that no details were given of his conviction for assault in 2012 as contained in the antecedent report. And which defence counsel admitted to in his address on sentence. However, since perusing the PSR, I have changed my mind as it seems to me that prisoner does have serous personality problem.

(4)	 Strong evidence of de facto provocation notwithstanding that the prisoner had plenty of time for his passion to cool before he reacted to what was apparently a provocative confrontation that unfolded or erupted in the office and the way it was orchestrated and handled by the deceased which, being human, most likely affected the prisoner emotionally and psychologically.

25.      Against the prisoner, the following factors aggravate the offence:

(1)	Prevalence of violent crimes of this magnitude.

(2)	Deliberate use of offensive weapon with some element or degree of pre-planning when the prisoner went to the hardware shop after the confrontation with the deceased over the laptop and the blue movie issue and brought a bush knife to specifically use for the attack of the deceased.

(3)	 Unnecessary loss of life when sanctity of human life is not respected when a person can terminate another’s life without consideration or hesitation as if one is killing an insect or a fly.

(4)	 Prisoner is a highly educated man and mature person with extensive exposure to modern influence and operated in an environment where he interacted with people at all levels and his sophistication is expected to be much higher than ordinary villager to appreciate and tell the difference between right and wrong with regard to his actions.

PROSECUTON SUBMISSIONS

26.      Mr Kaipu cited Goli Golu v The State [1979] PNGLR 653 as the authority that states that the maximum penalty must be reserved for the worst case of wilful murder. He referred me to a number of case authorities which included the often cited Manu Kovi v The State [2005] SC789 for the appropriate sentencing guidelines and on the gravity of the offence deserving the maximum penalty, he cited Ure Hane v The State [ 1984] PNGLR 105, Ume v The State [2006] SC 836, The State v Madiroto [1997] PNGLR 95, The State v Ben Simakot Simbu (No.2) [ 2004] N2548, The State v Gregory Kiapkot & 4 others [ 2012] N4381, The State v Amos (No.3) [2012] N5073, Erebebe v The State [2012] SC1228 and a recent decision of the National Court in Manus The State v Hapot (No.2) [2016] N6452 where to sentence death were imposed with respect to two of  the victims and a sentence of 60 years for the other victim (the mother).

27.       In the last case which is one of my own decisions, the deceased were members of a family comprising mother and two daughters. The attack and murder of the mother was planned and executed in cold blooded fashion when she had earlier on several occasions rejected the prisoners’ sexual advances but there was no reason for the murder of the two daughters except to conceal evidence of the murder of the mother. This incident happened on the island of Mal and in a remote and isolated part of the island.

28.        The Hapot case is quite out off league to the one before me and cannot be an authority to rely on in asking for the maximum death penalty in this case.

29.       Be that as it may, Mr Kaipu submitted that this is one of those worst cases of wilful murder that deserved the maximum penalty of death as it falls into one of those categories mentioned in the Supreme Court case of Ume v The State (supra)- 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. policemen correctional officers, government officer, school teacher, church worker, company director or manager.

30.    There are several reasons, I found his submission untenable:

(1)	Firstly, I do not see any relativity or relationship of the deceased to the category of the persons mentioned in Ume case. The deceased was just another officer like the prisoner except of higher rank than him who untactfully handled a private and personal matter quite out of context of his oversight or supervisory role in the Department when he threw his weight so heavily on the prisoner quite unnecessarily. Even his fellow senior officer Samson Yombon, as witness in court, did not seem overly impressed with the deceased dramatising another officer’s private affair as he said quite frankly that when he came over he did not see any blue movie on the screen. But common sence prevailing since when did that become a serious disciplinary matter in the Department that the deceased felt duty-bound to report to the Secretary and call for dismissal of the prisoner? Was it a criminal or internal disciplinary offence for what one person watches on his screen be it in the privacy of his home or office? This was a Saturday morning and according to the evidence there were only four officers working that day and whose right was the prisoner violating if he really was watching blue movies in his cubicle or work station?

(2)	 He could not satisfactorily persuade me that most of those cases he relied on remained good law because as far as I know, nearly all of those death penalty cases were appealed to the Supreme Court. No decisions of the Supreme Court on those cases were referred to or produced either dismissing or upholding the appeals.

(3)	 The circumstances in this case, despite the cold- bloodedness and some degree of pre-mediation, are quite dissimilar to those cases he referred to that gave those prisoners no reasons for their crimes as opposed to this case where there is strong element of de facto provocation.

(4)	 There are exceptional circumstances in this case in favour of the prisoner requiring special attention on the facts presented in the State case and relied on by the State to prosecute the prisoner and the court accepted those facts in the record of interview to return the verdict of guilty. Notwithstanding the guilty finding, the court accepted the facts presented with those extenuating circumstances to be taken into account or consideration for purposes of punishment.

(5)	 The submission is making a mountain out of a molehill when he knows very well that he cannot walk away from the peculiar circumstances of this case that he relied on to prosecuted the prisoner and then reject or ignore them for purposes of punishment.

DEFENCE SUBMISSIONS
31.     Mr Javapro submits I consider the prisoner’s remorse, old age, medical condition as HIV/AIDS Patient, lack of pre- planning, acted alone and more particularly there was de facto provocation.

32.     Mr Javapro also cited several case authorities including one founded on the decision of the National Court when hearing a human rights application where the court ordered release of a prisoner on humanitarian grounds as medical evidence supported that the prisoner was suffering from chronic arthritis. That was the case of In re Application for Enforcement of Human Rights by Jerry Kui [2014] N5734. This was on the basis that the facilities to attend to the prisoner’s peculiar needs were unavailable in the prison environment and more so the family was willing to take charge of looking after him. The prisoner by then had served substantial portion of his sentence and the conditions in the jail had deteriorated to the level that to continue to detain him there would be most hazardous to his health in the light of his chronic medical condition.

33.       In the present case no evidence was tendered showing that a family member or members are willing to take charge of the management of the prisoner at home if he were to be released into the community. Definitely he won’t go back to his employment, that is for sure after this crime has been committed in his place of work.

34.      Mr Javapro relies on the medical reports submitted by the various health authorities that have managed the prisoner since he was diagnosed HIV/AIDS positive and treated him with the prerequisite antiretroviral drugs for his lifetime. He submits this can be better managed from outside than from within the prison due to past experiences where the prisoner was not afforded the opportunity to get this treatment which worsened his health condition.

35.      It is therefore submitted that a sentence in the range of 20-30 years be imposed and half of the term be deducted considering the prisoner’s old age and medical condition. And it is further submitted that based on the authority of Jerry Kui’s case, the other half of the sentence be wholly suspended with conditions in order to enable the prisoner to attend Port Moresby General Hospital for his regular treatment with antiretroviral drugs which opportunity is not easily available if he is in prison.

CONSIDERATION AND CONCLUSION

36.      I have considered the submissions by both counsel. There are exceptional circumstances in this case that do not warrant the maximum or even near maximum penalty based on the facts presented in the case. The deceased unfortunately put into motion a dangerous situation that turned against him which is regrettable and for which the prisoner expressed his remorse for bringing about untimely end to his life. I accept that the prisoner’s mind was overborne and adversely affected by what the deceased did to him and his laptop and what he was going to do on Monday. He already had a warning for an earlier disciplinary incident and it needed just one more to get the sack. He was very conscious of this. The deceased aggravated the fear he was in by his threats.

37.    But I do not consider a suspended sentence either wholly or partly is an appropriate one in this case. This case is not similar to that of Jerry Kui, the subject of human rights application. I must also add for counsel’s benefit that there is no such thing as deducting a term of sentence for old age or medical condition of a prisoner. These are mitigating factors taken into account by the court when imposing a sentence more leniently in favour of the prisoner. Court only deducts sentence for time already spent in custody after gross term of sentence has been determined. This is a very noble submission and counsel had not cited any authority for his proposition.

38.     It seems quite obvious to me that the prisoner has a serious attitude problem and this attitude has seen him get into many troubles since he was a young man while at university when he was expelled for assaulting a chef, when he was employed by the Police Department when dismissed for insubordination and in 2012 he was fined by the Boroko District Court on a charge of assault. The Boroko District Court conviction took place four years after the prisoner was already a HIV/AIDS Patient. This evidence shows a trend or tendency that the prisoner has the propensity to have things his way and will not abide by any conditions that are imposed if given suspended sentence. In any event PSR does not support suspended sentence because in their professional assessment, the prisoner is not a suitable person to be placed in their care for supervision and management.

SENTENCE
39.     In all the circumstances therefore, I sentence the prisoner to 25 years imprisonment in light labour. I deduct the time he had spent in custody which is 2 years 11 months and 23 days today which now leaves him to serve 22 years and 7 days. And I make the following additional orders:

(1)	The Commissioner for Corrections shall transfer the prisoner to serve his sentence at Bui Iebi Prison in Mendi which is close to his family and children,
	
(2)	 The prisoner management in whichever prison he is detained shall ensure that the prisoner visits the hospital nearest to the prison for his life-long antiretroviral treatment regularly, if not at least once every month.

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