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State v Kulu [2018] PGNC 435; N7542 (25 October 2018)

N7542

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 219 OF 2017

THE STATE

V

PIUS KULU

Kimbe: Miviri AJ
2018: 20, 21, 24, 26, 27, September & 23,25 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death proved – intent to kill proved –death from gunshot – deceased shot in the heart–right to life sanctity of – tribal fights prevalent– serious breaches of law –strong penalty– deterrent and punitive sentence

Facts
Prisoner shot the deceased through the heart with a gun intending to kill him and killed him.

Held
Prevalent offence
Deceased shot through heart
Tribal conflict
Strong deterrent punitive sentence

Cases Cited:
The State v Aihi [1982] PNGLR 92
The State v Arua Maraga Hariki [2003] PGNC 140; N2332
The State v Ben Simakot Simbu (No.2) [2004] N2548
The State v Dede [2018] PGNC 356; N7448
The State v Erebebe [2013] PGSC 9; SC1228
The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241
The State v Hagei [2005] PGNC 60; N2913
The State v Hagena [2017] PGSC 55; SC1659
The State v Hariki [2003] PNGLR 1
The State v Hane [1984] PNGLR 105
The State v Kovi [2005] PGSC 34; SC789
The State v Kuvi [2017] PGNC 242; N6905
The State v Malala [2018] PGNC 357; N7445
The State v Nerious Pinda [2012] PGNC 291 N4872
The State v Ombusu [1996] PGSC 28; [1996] PNGLR 335
The State v Poroli [2004] PGNC 113; N2655
The State v Simo [2018] PGNC 221; N7312
The State v Sanamia [2018] PGNC 141; N7241
The State v Ume [2006] PGSC 9; SC 836

Counsel:

A Bray, for the State
F Kua, for the Defendant

SENTENCE

25^th October, 2018

1. MIVIRI AJ: This is the sentence upon Pius Kulu convicted of Wilful Murder that he on the 6^th day of August, 2016 at Gatuwore village, Talasea wilfully murdered Joseph Tangole Lagar. He shot him with a gun to the chest and ribs penetrating into the heart and killing him.
   

Charge

2. He is charged contrary to Section 299 (1) of the Criminal Code Act, he intended to kill Joseph Tangole Lagar and did kill him. That section is 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.

Background

3. Much of the relevant facts in the matter are set out in the judgement on verdict and will not be repeated suffice to say, that this was yet again another tribal conflict that culminated in the shooting of the deceased Joseph Tangole Lagar who suffered gunshot wounds to his heart from which he died. There was clear calculated intention to kill because he was shot through his Heart the central organ of the body. His death occurred on the 6^th August 2016.
   

Allocutus

4. When prompted on allocutus prisoner recounted, “Your honour I am innocent of the charges I am a good person in the Community. And I always bring goodness in the community. I do not bring trouble. I am brought up in a Christian family I am married with four children and blocks of Oil palm coconut cocoa balsa and I am bread winner for my family. I ask honourable court to consider me with what I have said.”
   
5. He pleaded that this be considered in the determination of an appropriate penalty upon him. In this regard due consideration is accorded appropriate weight accorded towards sentence fitting of the facts and circumstances including the allocatus he makes. Whether or not he is innocent is no longer the issue nor will it be a consideration in the sentence that is passed, because by due process his guilt has been duly determined. Findings of facts have been made in the verdict as his assertions in this regard. Those remain and will be the basis upon which this sentence will derive. He made self serving assertion of a good character which is not on the same level now that he has been convicted. The sentence will take into account his previous good character and due weight will be accorded. In this regard the presentence report tendered and before the court in satisfaction of orders made will also be accorded due weight were warranted in this regard.
   

Presentence & Means Assessment Reports

6. Following application by counsel defending and orders pursuant presentence report dated the 19^th October 2018 confirmed the details, prisoner was 30 years old from Gula village Talasea West New Britain Province. He was married with four children. And was the eldest out of eight siblings. He was educated to grade 11 at Vunabosco in 2002 but did not complete due to school fee problem. He was OIC Supervisor at Lolokoru Palm Estate from 2011 to 2012. The presentence report disclosed a peace ceremony held on24^th to the 27^th May 2018 at Bitokara sub-Parish involving leaders both of the National Government of the district and also Local Level Government. Despite the involvement on that level the report did not disclose that this would be long term and that there was no guarantee that the same matter or similar matter in that area would arise again. In particular K30, 000 was demanded and only K10, 000 was made and how this money was disseminated. Father of the deceased pleaded for the court to order payment of the same. By law under the section 5 Criminal Law Compensation Act that was not possible and could not be made beyond K5000. The means assessment report did not disclose where the K30, 000 would be derived to make the payment. It was unrealistic and did not advance mitigation for the prisoner in that regard. The assertion of having that money for the last two years at hand awaiting the verdict was more word than deed.
   

Defence Submission on Sentence

7. Counsel defending submitted in mitigation that he was 30 years old and of the Catholic Faith. He was in custody on remand for a year and ten months since he was arrested and detained on 8^th November 2016. That this was not the worst case going by Aihi v The State [1982] PNGLR 92. Counsel pleaded for sentence to be accorded in the terms of category two in Wilful Murder cases which is 20 to 30 years: Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). That a determinate term within that range be imposed upon the prisoner. He accepted that it was pre-planned offence, that there were weapons used, and there was strong desire to kill. But the case did not draw the maximum penalty of death upon the prisoner given. There was intricate balancing to so determine. Here prisoner was a first time offender but the case was not as serious as that of Ume v The State [2006] PGSC 9; SC836 (19 May 2006) in particular the deceased did not suffer torture and suffering to the extreme before she succumbed to death. There was no further violence over and above. It was submitted that it was not likened to The State v Hariki [2003] PNGLR 1 where like Ume’s case (supra) the prisoner intoxicated both deceased and then killed one and then the other. He then discarded the body along the Papa Lealea road. The court convicted him after trial imposing life years for the first and the death penalty for the second. The facts were not likened and therefore sentence would not be proportionate. This was not a killing of a very young child or a person under disability who needed protection of the law, or person in authority for example leader in government, or killing that occurred in the course of another crime such as rape robbery or theft, or killing committed as a result of hire. Or that there was killing of more than one person or that the prisoner had a prior conviction for homicide offences.
   
8. It was submitted that the killing here was under de facto provocation in that deceased was part of a group of men from Dire armed with weapons and shields intent on paying back for the death of one of their man killed in the morning. That fight did not involve them from Dire. But amongst those at Gatuwore of the Madaro and Siboka clan of Darava Village.
   
9. Counsel further submitted that deceased died from a single shot from the gun therefore not vicious. He gave himself to the law and cooperated with the police and the law. A first time offender, there was remorse expressed by the prisoner. Counsel pleaded for a term within category two of Manu Kovi’s case (supra).
   

State Submission

10. State counsel submitted that offender was found guilty after trial but there is discretion under section 19 to impose a term other than the maximum of death. This was more or less like an ambush when deceased and clansmen approached the offender stood up and shot him. It was a planned move it was talked through and the killing took place in fulfilment. Deceased was an unsuspecting man. His shooting was a pre-emptive move by the prisoner and his clansmen. The medical report and post mortem report shows he was shot through the heart. There was strong intent to kill. It was a cold blooded killing. It was a vital part of the body. And therefore a strong desire to kill. Prisoner jumped up raised his gun above his head calling that he was king and another should come. It was submitted that the offence of tribal fighting was prevalent in Talasea and strong deterrent sentence was called for. A gun only takes a single blow to kill. There was no fight, it was death from gunshot. It was not a spleen death. There was no pre-existing condition. He surrendered to Police, answered all questions in record of interview. But there was neither real admission nor remorse by the prisoner. He still proclaimed his innocence even after been found guilty. Aggravation far outweighs mitigation with the effect that there is no real mitigation. This case falls into the third category and that it falls into life imprisonment. No compensation was paid except for belkol money of K10, 000.00. It is not clear as to how this money was distributed and there was no compensation paid. Two years since but no real payment of compensation. Custodial term was appropriate in view of the fact that there was a death. Further cases which were relevant in the consideration of sentence were; State v Malala [2018] PGNC 357; N7445 (10 September 2018); State v Dede [2018] PGNC 356; N7448 (10 September 2018). On the basis of these authorities life imprisonment was appropriate for the prisoner given all or a lesser term as contended by defence, or the extreme of death.
    

Issue

11. The issue raised by both sides is as to what is an appropriate sentence for the prisoner? Should the prisoner be sentenced to 20 to 30 years or should he be sentenced to death or life imprisonment? What is the proportionate and just sentence for the offence of wilful murder? Is this the worst case of wilful murder and therefore deserving of the maximum sentence of death?
    

Sentence

12. At the outset the maximum penalty will befall a worst case following Aihi’s case (supra).And the maximum sentence prescribed is death. What then is a worst case of wilful murder? In Hane v The State [1984] PNGLR 105 (28 May 1984) the court gave guides that, a wilful murder done of a policeman or warder could be a worst case, this is now clear from the case of the State v Poroli [2004] PGNC 113; N2655 (25 August 2004) the maximum penalty of death fell against the prisoner who had the deceased policeman say his last prayers before shooting him in the head with a gun and throwing the body down a deep ravine. It was also guided that where in the course of a criminal offence wilful murder was committed the death penalty would follow suit. The court set this out in Ombusu v The State [1996] PGSC 28; [1996] PNGLR 335 (2 April 1996) which has since being overturned on appeal on a technicality to life imprisonment.
    
13. It was also guided that where there was a case of second or third wilful murders committed as in State v Arua Maraga Hariki [2003] PGNC 140; N2332 (3 February 2003) who intoxicated both deceased strangled and killed the first and then the second deceased after which he took the bodies to the Papa Lealea roadside and threw them there. It was considered the worst case. Life imprisonment was given for the first wilful murder and the death penalty was given for the second. That was considered a worst case. It was set out by and followed in State v Ben Simakot Simbu (No.2) [2004] N2548, the deceased was raped and killed for refusing to give to the prisoner a chicken on credit and her innocent young infant was also killed with the same iron on his head. A similar reasoning was followed in State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 (4 April 2011) 8 persons were wilfully murdered on a boat by the five prisoners. Each of them were sentenced to death for the 8 wilful murders committed of the eight deceased. Which has now being confirmed on appeal to the Supreme Court by the prisoners in Hagena v The State [2017] PGSC 55; SC1659 (11 December 2017). The death penalty has now being confirmed appropriate. When the level of violence is high and extreme to terminate deliberately the life of another the penalty is the ultimate of death and where this involves multiple deaths. Here 9 persons were ambushed in a military styled execution by an ex Papua New Guinea defence Force Officer with cohorts and co prisoners killed with military precision. The court on appeal imposed for wilful murders counts 1, 2, 3, 4, and 8 drew life imprisonment upon the prisoners. And against counts 5, 6, 7, and 9 the court gave the death penalty in respect of those counts. These were for the deaths of Junior Jerry Malamamo. Gina Jerry, Bata Jerry and Kenuve Ekebae. And for the deaths of Jerry Malamamo, Sopue Aiyuwe, Lainmane Apailope, Malamamo Soboe and Malamamo Alipai life imprisonment was imposed. The case is Erebebe v The State [2013] PGSC 9; SC1228 (2 May 2013).
    
14. Measured from that and given the facts of the present case and its circumstances will draw the next most serious penalty of life imprisonment. Because at the outset this was a trial another wilful murder that arose because of tribal dispute using guns to settle rather than through process of law. A gun is a lethal weapon more than capable of killing instantly as evidenced here. And to sustain as here a shot through the heart needs skill not accident or luck, one who is a marksman needing concentrated and sustained aim to secure a kill as is the case here. It is even more difficult of a moving target to secure with one shot that caps off in this manner; it shows calculated intent to kill. There is no doubt that Pius Kulu had these qualities in him to secure one kill with one shot to the most venerable central organ of the human body, the heart to terminate instantly the 33 year old life of Joseph Tangole Lagar. He was moving with men from his village in a group. It is serious because he is singled out in the shot and not the others amongst the group. No one either next to him or around him is shot by the prisoner. And this is certified by the prisoners own exclamation immediately after the shooting, “I am king send another”. It also gives credence to the account of the witnesses of an ambush where they lay in wait for the enemy to come upon and to hit as was done in critical and where it counted most. Prisoner jumped out of the ambush after firing the shot onto the road and made these exclamations. These considerations are not in remote nor are they new grounds as Erebebe’s case shows out clearly confirmed by the Supreme Court. Hence it would not be an error of law to follow suit.
    
15. It must also be set that this was expected that men from Dire would come for the death of Edwin Tangole who died that morning there, and whose body was taken and the deceased and other men were coming to find out why he died. They were coming to fight those at Gatuwore for the death of Edwin Tangole. This is the evidence by all witnesses called and common also to the defence. The men of Gatuwore were there to defend the village. Hence it mattered to secure every shot to kill and to effectively prevent entry and damage to the village and people within. Effectively that is what Pius Kulu did on this occasion. As submitted by the State Prosecutor this was a pre-emptive strike which effectively had the desired effect the men of Dire retired before they could fight. Their spirit to fight was subdued by the wilful murder of Joseph Tangole Lagar, ambushed shot and killed by Prisoner accompanied by the others who were with him. Had it not being for this ground a case of death penalty would have been made out against the prisoner.
    
16. This is an extenuating circumstance within the meaning of State v Hagei [2005] PGNC 60; N2913 (21 September 2005) where 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 into 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.
    
17. It is a case where the spiralling effect of the conduct of the prisoner undermines the Constitution the highest law of the land. In particular section 35 of the Constitution the basic right to life that is guaranteed is made mockery of by the Prisoner. And so too by the holy Bible, Thou shall not Kill. Guns and ammunition without licence in the hands of that intent encouraging lawlessness disorder in society community’s villages as here cannot be allowed to question and to torment the legal authority of the Constitution law and order. The court discharged with this authority will implement by strong deterrent and punitive punishment. That is clearly applicable here given the facts and circumstances peculiar against the prisoner. Here it is even more determining that the rule of law must be instilled amongst all in Talasea particularly when in the recent past serious violent offences emanating from tribal conflict, Ume case (supra); State v Kuvi [2017] PGNC 270; N6934 (21 September 2017); State v Malala (supra). The lives of the people have been seriously effected by these very serious criminal offences notably here wilful murder committed using guns, including lethal use of bush knives axes and the like. Any intention to pay compensation will not be court sanctioned and sourced but bona fide as opposed to mala fide of the prisoners against those and the community he had wronged. Fundamentally important and underlying is to bring finality, peace order lawfulness in that community and District.
    
18. The Courts will stamp out extreme violence total disrespect for the sanctity of life and give effect to the purpose of the amendment by parliament of the maximum penalty of life years to death in wilful murder cases without question where the facts and circumstance are clear and beyond all reasonable doubt against the prisoner as is the case here. This is a case parallel to Ume’s case (supra) which is from Pangalu also in Talasea. And State v Kuvi (supra) which is from Ganeboku in Talasea. And that decision was in September 2017 just after the celebration of the forty second Independence this is now the forty third Independence celebrations and this offence of wilful Murder in that area has not subsided nor does it appear being deterred. The Court has in these given circumstances a duty under law to impose the rule of law by strong deterrent and punitive sentences to bring about order and lawfulness. That is called given the circumstances and the facts depicted out here beyond all reasonable doubt against the prisoners Max Malala, William Kiu and Alois Bailey all of Minda, Talasea: State v Malala (supra). It would in all apply here on all fronts. It would appear from these cases that life has become a toy to be played around with and discarded when it is of no use. And it can be disposed off either by wielding bush knives and curving it up like a banana stump as in State v Malala (supra) or as in State v Simo [2018] PGNC 221; N7312 (20 June 2018) where the left arm was cut off in a tribal conflict cuts to the head and the other hand 8 years IHL concurrent with arson arising related at Rovu in Talasea; State v Nerious Pinda [2012] PGNC 291 N4872 (21 February 2012) was an amputation below the elbow by the use of a bush knife upon the unarmed victim who had got off a PMV near Pangalu in Talasea to be met and chased by the prisoner accompanied by two others also armed and wielding bush knives set upon victim and wife, the court sentenced the prisoner to 16 years IHL in jail; and in State v Sanamia [2018] PGNC 141; N7241 (9 May 2018) 19 years IHL was imposed against a father and son at Tamare Talasea who severely cut up both hands of the victim rendering him 80 percent functional loss of both hands. And recently in State v Dede (supra) the 3 prisoners there were sentenced to 50 years IHL each for lifting dumping the deceased who suffered a broken neck and died. That was in Mai also in the Talasea district. The case of State v Barambi [2017] PGNC 245; N6906 (20 August 2017) was here in Kimbe at the bush camp settlement were life imprisonment was imposed after trial upon the prisoner who tortured and beat the deceased de facto wife until she succumb to the beatings and her lifeless body was retrieved from their shanty where they dwelt at.
    
19. Talasea is an integral part of West New Britain Province. Kimbe is the provincial capital time and again this tribal violence has always affected life of all here without heed to the authority of the Constitution. It is time enough to stamp out these continued abuses by strong, deterrent and punitive sentences against those who dare to defy again as here. Continued reverence adherence to the tribe and tribal affiliations to pursue illegal and unlawful acts in defiance of the Constitution must meet the full force of the rule of law. Peace and orderliness must be restored and life lived as human beings as Christians without fear or favour of violence.
    
20. It was in the morning I heard that a man Edwin Tangole was killed. We went there to Gatuwore and to ask those who had killed Edwin Tangole at Gatuwore. As we arrived one shot was fired from the left side. I fell onto the ground where the grader graded to take cover. My head came up and I saw Pius Kulu stood up and fired. This was in my view and he shot Joseph Tangole Lagar who was 20 meters from me. Isaac Wakore threw a tear gas on the body of Joseph Tangole Lagar. Accused came out from where he was onto the road and uttered, “Mi King wanpela mo kam ken, I am King one more come” The arrogance and defiance of this prisoner and his stubbornness even in the face of the fact that a due process in law has culminated end to end in his guilt beyond all reasonable doubt. Now that the sentence rampant he is ever defiant as ever. His reign of terror must be subdued to that of no other than the reign and rule of of the law as supreme. Being a Christian a good person in broad day light in view of witnesses unmasked at distance of 15 to 20 meters to prop and to shoot a fellow human being, and to exclaim as above is defiance that must be stuffed out by sentence fitting, and proportionate to his facts and circumstances of Life Imprisonment which I so impose upon him for the wilful murder of Joseph Tangole Lagar, committed at Gatuwore Talasea on the 6^th August 2016.
    
21. The sentence of the court in all the circumstances is Life imprisonment forthwith.
    

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Felix Kua Lawyers: Lawyer for the Defendant