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State v Barambi [2017] PGNC 245; N6906 (20 August 2017)

N6906

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1321of 2014

THE STATE

V

CHRIS BARAMBI

Kimbe : Miviri AJ
2017 : 20^th August

CRIMINAL LAW - Practise & Procedure-Trial - Wilful Murder section 299 CCA – trial-persistence grievous assault with baton - extensive injuries - right to life section 35 - protection of the law-freedom from inhuman treatment - wife beating prevalent - sentence

Facts

Wife continuously beaten to her death with a baton over no tin fish.

Held

Wife beating prevalent

No care attitude persistent violence over and above serious grievous assault with baton.

Life years IHL.

Cases cited:

Thress Kumbamong v The State (2008) SC 1017

State v Ben Simakot Simbu (N0.2) (2004) N2548

State v Gurua [2002] PGNC 41; N2312 (11 December 2002)

State v Hagei [2005] PGNC 60; N2913 (21 September 2005)

State v Poroli [2004] PGNC 113; N2655 (25 August 2004

The State v Aihi (No 3) [1982] PNGLR 92 (5 March 1982)

The State v Arua Maraga Hariki (2003) N2332

The State v Bulen [1990] PNGLR 43 (16 January 1990)

The State v Hane [1984] PNGLR 105 (28 May 1984)

The State v Kerua [1981] PNGLR 357

The State v Ume [2006] PGSC 9; SC836 (19 May 2006)

Counsel:
D .Kuvi, for the State
B. Popeu, for the Defendants

SENTENCE

21^st September, 2017

1. MIVIRI AJ: The prisoner has been found guilty of wilful murder under section 299 which carries the maximum penalty of death.

Short facts

2. On the 1^st June 2014 between 7.00pm and 8.00pm the Prisoner continuously beat his wife with a baton until she died from internal injuries. He also used an oil palm sickle and cut her. He intended to kill her and did that.

Issue

3. What then is the appropriate sentence here?
   
4. The section uses the word shall so is it that the prisoner shall be sentenced to death here. That is the maximum penalty it is the ultimate penalty by that section. But there are cases in between where the sentence will fall in short of the maximum penalty of death. This view is borne out by the case of Hane v The State [1984] PNGLR 105, the maximum penalty of life years IHL was set aside and substituted with 15 years because the law allows, categorising of those “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offender.
   
5. Ume v The State [2006] PGSC 9; SC836 (19 May 2006) was a case similar where the death penalty was imposed upon the appellants who avenged the death of another but did not find the son so took it out on the old mother raping and subjecting her to indignities and killing her. On appeal to the Supreme Court against the penalty of death the court set aside the death penalty and imposed life years for all appellants.
   
6. The code itself also seals by Section s. 19(1)(aa), of the Criminal Code providing:

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

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

It is clear by Ume’s case (supra) and section 19 (1) (aa) that the maximum sentence is death but it is discretionary and not automatic. So to justify that the maximum penalty of death is to be imposed upon the prisoner, it must be the worst case of wilful murder as the maximum penalty is always reserved for the worst case. Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982)

Aggravation

7. So is it the worst case of wilful murder here? I start with the aggravating features of the case and these I have set out in the findings of fact and the intent to kill which I set out in full below.
   

Findings of Fact

8. On the 1^st June 2014 Sunday between7.00pm and 8.00pm Prisoner was beating his wife over the fact that there was no tin fish to serve with the rice that he had cooked. Maria Godfrey a neighbour and relative saw it and ran across accompanied by her son Aravande Godfrey. She tried to help and sent her son with some money to buy the tin fish and then to give him that tin fish. He refused it and threw it down hitting his pocket and saying I got money I don’t need your tin fish. He continued to assault her with the baton and got the sickle and cut her head. Maria Godfrey told him to stop assaulting her but he persisted with the baton on the neck down to her back. Then he got a sickle and cut her head with it. Then he threw the pot of rice which was on the fire over spilling the rice out to the ground, he scooped up the hot rice with his two hands and threw it upon his wife Denila Toridon who was facing downwards and so it landed on her back. Then he got a burning coconut frond from the fire and burnt her skin with it. He told her to get up and to walk into the house she replied, “daddy inap nau ya mi dai ya”. I told Chris that is enough today is Sunday you are assaulting Jesus, “inap nau ya today em Sunday ya yu paitim Jesus”. He came and told his wife to go inside the house she said,” Daddy mi hard long kirap mi kisim bikpela bagarap, then he came and lifted her up and supported her into the house and I went back to the house. He hit her hard with the baton He continued to assault her with the baton and got the sickle and cut her head. He said because of the tin fish you will sleep in the house without eating. Next morning he surrendered as Delina Toridan was dead and in the small house. The Police and ambulance went up and picked her from there. I consider it important for the purposes of sentencing to set out the finding of the court on the intent to kill.

Intent to Kill

9. The dying declaration by the deceased Delilah Chris Walis alias Denila Toridon that the accused had grievously injured her “Daddy inap nau ya, mi ino save long tin pis ya, bai mi dai nau ya, daddy inap nau”. Interpreted, that is enough daddy I do not know about the tin fish, I am going to die, that is enough daddy”. Followed by “daddy inap nau ya mi dai ya” interpreted, “daddy that’s enough Im dying” and,” Daddy mi hard long kirap mi kisim bikpela bagaram,” interpreted, “daddy it’s hard to get up I’ve received very serious injuries”. She knew that her death was imminent. She did not entertain any hope of recovery. That legal proceeding might eventuate. Had she lived she would have been a competent witness in any proceedings brought. And would have given direct oral evidence in the matter in court. Bulen, The State v [1990] PNGLR 43. What is established by this evidence is that the deceased was on the verge of death from the injuries as a result of the beatings at the hands of the accused. She conceived that she was in no state to survive if the accused continued as he did, she begged him to desist and to spare her life. He is a sane person in good health educated to grade 10 Maprik High School employed as a static guard with guard dog security services and what was uttered by the deceased was next to him their bodies touching as he assaulted. He no doubt heard her plea to stop and desist the assaults because she was dying. He now had the knowledge that she was dying and he persisted till she was no more she had succumbed to the beating and had died. He heard her not to kill her he persisted to kill her. I find on the basis of this evidence that accused had intended to kill the deceased and carried out that intent until he fulfilled with her lifeless body left discarded in their shack and he surrendered to Police next day 2^nd June 2014.
   
10. The body was picked up dead from the house by ambulance accompanied by police the next day 2^nd June 2014 a Post Mortem Report and the medical certificate of death was prepared. The affidavit of Dr. Jack Marcus attaching the Post Mortem Report and the medical certificate of death was tendered as business records relying on the case of Kerua v The State [1981] PNGLR 357. Notable in this report is (1) multiple bruises and haematoma over the head, face, neck, shoulder and thigh, (2) Huge midline laceration dune the upper lip with loose or extracting 2 upper frontal canine teeth, (3) Left parietal skull scalp with haematoma and the neck has bruise and fractured and dislocated, (4) there is piercing wound on Mons pubis. This is the amount of violence that the deceased was put through and that is clearly borne out by her plea for the prisoner to desist and stop and have mercy particulars I have set out above. These injuries to my mind depict that she was tortured to her death. She died a slow painful death over a mere tinned fish.
    
11. A death is a death be it by persistent beating with a weapon as here coupled with the use of an oil palm sickle, or a fist to the face a backward fall hitting the head on a hard surface internal bleeding and death culminating, a use of an axe or knife to stab and to cut up the deceased with death resulting, hit with a blunt instrument death culminating, shot with a gun death culminating all are one way or another death to the victim, who will no longer for all intent and purposes ever be seen amongst the world again ever. Life is only lived once and no man can ever return. It is therefore a fundamental right under the Constitution section 35 and which right can only be taken by due process of law not otherwise. All man are equal unto the law the deceased as well as the prisoner no one is above the law. Justice is blind and equal to all should therefore the prisoner be given his right to life over and above that of the deceased his victim, or are both equal in the eyes of the law and the Constitution? Is that the case with the prisoner here and the deceased wife?
    
12. I am unreservedly convinced that where there is unlawful perseverance persisted with deliberate and calculated, with very strong intent to exterminate, terminate, eradicate, the life of someone without heed to logic, common sense, and adherence of the law, such a person does not deserve the mercy of the law, unless of course there is as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) extenuating circumstances to derail the penalty of death. Life has become cheap there is no sanctity of life:
    

“The court has a duty to impose sentence that are not only punitive on the prisoners but must have a deterrent effect on not only the offenders but other likeminded Papua New Guineans who plan on taking the law into their own hands. I do not say this lightly because in this country there are so many wanton killings as if life is some form of a commodity or a replaceable item that can be borrowed or bought from a hardware shop in town. Moreover killings in this country are becoming more daring, without fear and with no respect for the sanctity of life. Spending a lot of time in prison is not an inhibiting factor, it seems. Being separated from family and loved ones is not an inhibiting factor. The mere fact of taking a human life is not an inhibiting factor. Even the imposition of a death penalty for wilful murder seems not be an inhibiting factor. Our People need to be educated to a level that will instil some moral values in people’s lives. Living in a city with church influences has not helped to curtail these want on killings.” State v Hurotove [2017] PGNC 114; N6754 (5 June 2017.

13. What is pointed out here is undeniably present. Here a fellow human being, wife, companion, loved one, became one less than a human being. The Prisoner denied her right to life under section 35 of the Constitution. Delilah Chris Walis alias Denila Toridon was only 35 year old young woman who had a long way to go in her life. He brutally and violently beat her to her death over tinned fish for the rice that he had cooked. She was a member of a family of her own she will no longer be in that family ever. She gave her life to be his wife, his partner; he did not respect that fact. He treated her as if she did not deserve to be alive as if her life did not equate his hunger. He was not deterred by the fact Maria Godfrey and her son had brought him a tinned fish that he could have with his rice. He did not desist even there and then. He was determined that she should be beaten even when Maria Godfrey pleaded for her he did not listen. Even the name of the LORD Jesus did not deter him as pleaded by Maria Godfrey. Even when the deceased herself drew him to her fate he still did not heed particulars of her plea. I have set out above, he conducted his trial in pidgin he was fluent in that language, yet he heeded not her plea for mercy he was determined to continue to beat her regardless. In so doing it is as if he has shut out all and focused on what he was doing assaulting her mercilessly until she succumbed to the volume of violence that he had exerted upon her.

13. There is no evidence before me of a psychiatric report on the mental status of the prisoner at the time that he exerted the amount of violence on her. I observed him in the witness box when he gave evidence he told untruths to the police and then in court he was concerned more about himself than the deceased. From the injuries that I have set out from the medical evidence, it is safe to hold that he is person who is a danger to the community. I make this observation in the light of the fact that he was not prepared to stop the beatings when pleaded to by a family member, a neighbour. He was not deterred even when he was drawn to the extent of injuries and the condition that the deceased was in by her last words. Any ordinary person any reasonable person viewing objectively would have desisted from hearing the plea from the deceased in the condition she was in at that time. He acted viciously without regard for her life. He surrendered to police not as accepting that he wilfully killed his wife, but to save himself from retaliation by the relatives of the deceased. That continued in court, I have set out above the particulars.

Mitigation

14. In allocutus the prisoner stated, “I am only one in my family when this offence found me out”
    
15. His lawyer submitted that he be given a term of years and pleaded the following in his mitigation. He was 43 years old residing at section 11 Bush Camp Kimbe. He had no children and the wife was deceased by his hands. He was a security guard with Guard dog security services for 7 years. He was educated to grade 10 Maprik High School. The aggravation was that weapons were used, a baton and sickle. Serious injuries were sustained that he voluntarily surrendered day after. That the offence was not pre meditated, it was an isolated incident and there was de facto provocation. The offence was not in company with other persons. In accordance with Manu Kovi (2005) SC789 it was wilful murder falling in the 1^st and 2^nd category drawing 15 to 20 years and 20 to 30 years.

Prosecution reply

16. Prosecution on the other hand made a short submission outlining the findings of fact and the intent to kill in the judgment as the basis for an appropriate sentence. Stressing that it was wilful murder category 2 of Manu Kovi (supra). It was prevalent that husbands were killing wives to be stopped and deterred.
    
17. Having set out the pertinent facts of this case is the death penalty warranted here? Is this the worst case of its kind drawing the death penalty? Put another way what matters call that the death penalty should be imposed here. In the case of Hane (supra) Justice Bredmeyer set out the following: -
    
    • (1) A wilful murder done in the course of committing a theft, a robbery, a break and enter, or a rape.

(2) A wilful murder of a policeman or a prison warder acting in the execution of his duty. (3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody

(4) A wilful murder of a person in police or court custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(7) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

The list is not exhaustive and can be extended which means the facts here could easily draw the death penalty. But it is not automatic that the death penalty will be imposed because consideration of the offender’s degree of participation and his personal circumstances. If two men are convicted of the wilful murder of a policeman and one is a principal and the other a minor accessory, then a life sentence may be appropriate for the principal and a term of years for the accessory, similarly with the offender’s personal circumstances, they may be such that they justify a term of years. State v Gurua [2002] N2312. In State v Ben Simakot Simbu (N0.2) (2004) N2548, the accused was sentenced 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 live chicken on credit basis so that he could pay for it later whenever he got the money. 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 imposing the death penalty.

18. In State v Poroli [2004] N2655, policeman was told by the prisoner to say his last prayers and then was shot on the head and the body dumped down a deep ravine. It was an inhuman and barbaric killing of a policeman who was doing his duty as a policeman. The court imposed the death penalty.
    
19. In State v Kiapkot [2011] N 4381, Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul and Botchia Agena were all sentenced to death for the wilful murder of 8 persons killed at sea between Namatanai, New Ireland Province and Kokopo East New Britain Province. Each prisoner was sentenced to 8 wilful murder convictions all drawing individually 8 sentences of death. They killed and disposed off the bodies at sea, only two bodies were seen one was recovered but not the other.
    
20. These are instances where the court has imposed the death penalty and there are others also in the records. But they stand out to attract the death penalty because of the peculiar facts and circumstance which are unto themselves exceptional horrendous and heinous of such moral turpitude that no other sentence other than the maximum prescribed would be proportionate to the facts and circumstances laid out. A further factor is extenuating circumstances such as de facto provocation, duress, or cohesion, or compulsion, the degree and extent of the prisoner’s participation in the crime, medical condition, lack of sophistication, traditional custom practises, beliefs, which influence an offenders behaviour to act as he did.
    
21. In the State v Hagei [2005] N2913, the prisoner raped the victim who tried to run away naked, the prisoner chased after her punched her causing her to fall to the ground, as she did he picked up a stick, hit the back of her head causing internal injuries to the neck and the head from which she died. This court imposed life years upon the prisoner because of the extenuating circumstance that as soon as he was taken in by Police he was taken to the relatives of the deceased girl who severely beat him up, speared him with spear that come out just below his chest. He died and his body was wrapped up with plastic and as he was about to be put in the morgue when he became alive again. He pleaded guilty before this court. The death penalty was envisaged but not pursued because of this extenuating circumstance.
    
22. So are there extenuating circumstances here, there is no de facto provocation, nor is there duress or cohesion, or compulsion. I do not hold the non-availability of tinned fish to be eaten with rice as de facto provocation. The findings of the court on the intent to kill are specific and addresses that there was intent to kill. And therefore the submission that there was no pre-planning cannot stand because the discussion on his intent shows otherwise. He was acquainted by the deceased of her demise. He persisted till she was no more. From the evidence that has been illuminated by the witnesses both on oath, he is the author of the injuries because he is seen hitting the deceased with a baton from the head and neck down to the back. And then cutting her with a sickle. He is the only person with the deceased who is discovered with the piercing wound to the Mon pubis and the perforated lung. He is the only person who surrenders to police because of that fact. I hold that the guidelines in Manu Kovi are that they are guidelines only and that each case will be determined on its own facts and circumstance as to what sentence is appropriate. The discretion is not fettered (Thress Kumbamong v The State (2008) SC1017.
    
23. Given these I ask myself does the crime warrant the penalty of death and if so what are the bases for the imposition of the death penalty upon the prisoner. Considering all these facts and circumstances is it excessive to impose the death penalty given the facts here? You surrendered yourself to the process of the law after she died the next day. You accepted that you had no one to turn to except by the process of law for your protection as well as of the deceased. You led a very good life until this day. I say this because no evidence has been led of your prior conduct. But all these are outweighed by the serious aggravating features of the case and the fact that a trial was run as opposed to a guilty plea. The extent and the enormity of the injuries are such that even a determinate term of years will be disproportionate. I have seriously considered the imposition of the maximum penalty of death upon you but have been swayed otherwise by your surrender to the law and the process of law immediately after the offence. I consider therefore that the imposition of the maximum penalty of death will be disproportionate and excessive in my view. But the fact remains that it is a persistent and deliberate act to kill and you have breached commandment 6 of the commandments of God, Thou Shall Not kill. In the exercise of my discretion pursuant to section 19 of the Code you are hereby sentenced to Life years imprisonment for the wilful murder of Delilah Chris Walis alias Denila Toridon.
    

Life years Imprisonment.

Ordered accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defendant