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State v Yanduo (No 2) [2018] PGNC 496; N7596 (8 November 2018)

N7596

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 627 OF 2016

THE STATE

V

WESLEY YANDUO
(NO 2)

Kimbe: Miviri AJ
2018 : 18^th October 8^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Trial – death – intent to kill –deceased cut with bush knife – right wrist – head and scalp – severed brain matter – massive bleeding – unarmed innocent 14 year old boy – now deceased – senseless killing – deprivation section 35 right to life– sanctity of life –repeated cuts – prevalent offence – death penalty appropriate.

Facts
Accused chased and cut victim a 14 year old boy on the wrist he fell to the ground where accused cut him on the head causing massive bleeding killing him.

Held
Intention to kill
14 year old unarmed boy
Right to life S35 Constitution
Sanctity of life
Prevalent offence
Strong deterrent sentence.

Cases Cited:
The State v Aihi (No 3) [1982] PNGLR 92
The State v Manu Kovi [2005] PGSC 34; SC789
The State v Max Malala & William Kiu & Alois Bailey [2018] PGNC 357; N7445
The State v Dede [2018] PGNC 356; N7448
The State v Nimagi [2004] PGSC 31; SC 741
The State v Ume [2006] PGSC 9; SC 836
The State v Ben Simakot Simbu (No 2) [2004] PGNC 225; N2546
The State v Api [2001] PGSC 2; SC684
The State v Mongi [2007] PGNC 135; N3259
The State v Hagei [2005] PGNC 60; N2913
The State v Mesuno [2012] PGNC 80; N4701
The State v [Sanawi 2010] PGSC 31 ; SC1076
The State v Pius Kulu [2018] PGNC 435; N7542
The State v Mark Poroli [2004] PGNC 113; N2655
The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241
The State v Hagena [2017] PGSC 55; SC1659
The State v Erebebe [2013] PGSC 9; SC1228

Counsel:

R Galama, for the State
B Takua, for the Defendant

SENTENCE

07^th November, 2018

1. MIVIRI AJ: This is the sentence upon Prisoner Wesley Yanduo of Yandokum, Kubalia, East Sepik Province convicted after trial that he on the 6^th of December 2015 at Galai Oil Palm Settlement wilfully murdered Naegel John Las.

He cut the victim on the wrist felling him then cutting him on the head causing him to bleed to his death.

Charge

2. The charge is contrary to Section 299 (1) of the Criminal Code Act of Wilful Murder, Prisoner intended to kill Naegel John Las and did kill him. It reads 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.
3. This is the maximum penalty by law. It is not automatic but dependent on the facts and circumstances of each case. Usually the maximum penalty is reserved for the worst case. What is a worst case is a question of the facts and circumstances. No one case is the same each would draw its own sentence by its own facts and circumstances. It is judicial discretion that is exercised in accordance and is a balancing act between the aggravating, mitigating and any extenuating circumstance to arrive at a just and proportionate penalty against the prisoner in each case: Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982).
   

Background

4. On the 6^th December 2015 Naegel John Las died after being cut on the wrist with a bush knife when he lifted his hand to defend himself from Wesley Yanduo who swang it at his head. He fell to the ground and Wesley Yanduo continued and cut him on his head through the scalp involving the brain matter. He bled to his death as a result. He intended to kill him at the time he swung the bush knife and killed him.
   
5. Resorting to taking the law into one’s own hands has now become a norm detailed by the prevalence of this offence. The stiff penalties that are imposed by this court time and again reinforced by the Supreme Court on Appeal for instance in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) has not deterred. It seems life has become cheap there is no hesitation to inflict as did the prisoner armed with a bush knife against a defenceless harmless young boy of 14 years who had nothing on his mind except to escape the violence that was exerted at that time. He did not raise his hand to fight nor was he armed with a weapon aimed at bringing harm and injury upon the prisoner. He was simply trying to avoid the bush knife to his head. The horrendous nature of the attack is depicted out by Exhibit S1A the medical certificate of death dated the 18^th January 2016 signed by Doctor William Toua Medical Registrar of the Kimbe General Hospital detailed Naegel Las a 14 years old boy originally from Sepik resident at Galai 16. He was viewed on the 23^rd December 2015 with severed brain matter, hypovolemic shock and death. There were two deep lacerations on the skull with linear fracture. Exhibit S1B was the post Mortem report setting the time of death 6^th December 2015 at Galai 1 Section 16 Block number 1560. The cause of death as confirmed in the medical certificate of death echoed including the medical summary particularly that the head and neck deep lacerations X2, to the skull, extending through the scalp to the skull and involving the brain matter. No man let alone a child of 14 years survives as did the deceased from injuries inflicted to the head and brain vital organs of the body.
   
6. This evidence sets out in detail independently the veracity horrendous nature of the prisoner’s attack upon the deceased. What he did was gravely disproportionate in the way that he acted against the deceased. He was not deterred that he was a practising Christian from the AOG church. That life was God given and therefore sanctified. Section 35 was a basic right in the Constitution. He was not deterred that he was married and had three children of his own and a wife who was sick and dependent on his help. Nor was he deterred that his parents were aging and he was responsible for their upkeep and the maintenance of the family block. All did not stand between him and his action on that day against the deceased. These are all explicitly set out in the detailed presentence and means assessment reports. They aggravate his actions more than mitigate.
   
7. It is due time that the rule of law must be laid out in bold in the sentence that is passed. The court will not downplay nor will it pass this as an ordinary case. Rather the facts and circumstances are extreme and call for a stern deterrent and decisive sentence that enough is enough. West New Britain Province and Kimbe is riddled with killings as if there is no rule of law and sanctity of life even though it is predominately a Christian orientated province. Recently I emphasized this in State v Max Malala & William Kiu & Alois Bailey [2018] PGNC 357; N7445 (10 September 2018) where life imprisonment was imposed upon the prisoners for mercilessly cutting up the deceased with bush knives because he hit their canoe, conviction after trial on wilful murder as is the case here. A canoe let alone property can be replaced not so a human being. Human life is precious any person who sees fit to effect a violent crime terminating a human life must face the fact that the rule of law is supreme and will not tolerate continuous defiance. Deterrent and punitive and the ultimate sentence will be imposed to protect: State v Dede [2018] PGNC 356; N7448 (10 September 2018). It is not reinventing the wheel, “The Supreme Court in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes have no boundary and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra) the parliament has already legislated the different types of homicide by classifying them into Manslaughter, murder, and wilful murder. In our view, it serves no purpose when the Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the value of lives that have been prematurely terminated. The notion of sanctity of life and Constitutional protection of lives therefore become meaningless and mere judicial rhetoric, Nimagi v The State [2004] PGSC 31; SC 741 (1 April 2004). This is underlying and applicable to the facts set out by this case which is considered in the determination of this sentence upon the prisoner.
   
8. Here it was revenge killing one Issac Vitalis was assaulted by boys from section 16 and died. His body was taken to where the deceased were to resolve with compensation payment. It did not eventuate instead fighting broke out and the deceased with others were escaping when caught by the prisoner who laid in wait for them in the bushes there. By that fact he anticipated and planned what he was going to do he lived at section 13 and he was going to pay back for what section 16 boys did. The witness Jackson Imialas details this explicitly in his evidence on oath, I heard Wesley Yanduo calling out “banisim banisim” I told Brody to go and hid. I sat down and was looking on when Wesley called out, banisim em banisim em, yupela ol man bilong kilim ol man, condone him off condone him off you are people who kill people, Wesley lifted the knife and he was a small boy he was helpless he lifted his arm to protect his head Wesley cut his hand on the palm he fell down to his knees and he cut his head. I was there and Wesley was calling out and repeating, “I am from one three I killed one of them, in pidgin, mi mangi one three ya wanpela bilong ol mi kilim ya.” This is overt and clear language of revenge and express intent to kill in no uncertain terms by the prisoner. Prisoner was boasting the killing of the deceased after executing the murder. He knew what he was on about and exclaimed delight at what he achieved the death of a boy from section 16 in revenge.
   
9. It is a brutal killing committed in cold blood upon an innocent defenceless and harmless 14 year old boy. A very sharp bush knife was used as evidenced by the injuries that entailed set out above. It is a dangerous and offensive weapon that is mercilessly used against a helpless young boy. And this is not the first time the veracity of this weapon has been seen by this court on this occasion in the commission of this offence. Here it is used in revenge for the earlier killing of one Issac Vitalis from section 13 killed by boys from section 16. Deceased was from section 16 and he paid with his life for that fact. The killing was preplanned in the way that prisoner lay in wait for the deceased as set out above. There was strong desire to kill expressed and executed. By Manu Kovi’s case (supra) given all these it would be category three of wilful murder cases and would draw the range of life years imprisonment to the death penalty at the highest.
   
10. In Ume v State [2006] PGSC 9; SC 836 (19 May 2006) that was a revenge killing upon a very old woman at Pangalu Talasea, who was brutally attacked tortured and then killed in revenge. Initially the court imposed the death penalty for wilful murder but on appeal was overturned to life imprisonment against all prisoners. Here is a very young boy of 14 years old who is unarmed and running away when set upon in revenge and cut up mercilessly with a bush knife. In The State v Ben Simakot Simbu (No 2) [2004] PGNC 225; N2546 (25 March 2004) the mother was raped and killed together with her baby the court imposed the death penalty as appropriate. A piece of iron was used to deliver the fatal blow upon them killing both. That is two lives wilfully murdered. Here it is a single death of a young 14 year old boy. It is likened to Api v The State [2001] PGSC 2; SC684 (29 August 2001) where the deceased one John Sarufa a 14 year old boy a grade 6 student at Kilakila Community School recently transferred from Daru Western Province was found dead behind Kenmore City hill near Gabutu on the 27^th August 1999. He had no clothes and had faeces on his rectum. His skull was smashed in different places leading to his death. The point is well made by the Supreme Court when it confirmed the sentence of life years imprisonment upon the prisoner:
    

“Nevertheless, 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 any way trying to usurp the power and the independence of trial Judges in the National Court.”

11. This is very relevant to the facts depicted out by this case and its application is to the fullest extent in the determination of this sentence upon the prisoner.
    

Antecedents

12. Prisoner is 25 years old educated to grade 10 at Hoskins Secondary School in 2004 and went onto do an electrical course in 2007 at Vunabosco obtaining a certificate. He has employment history doing practical as an electrician at Numondo plantation in 2009 to 2010. At the time of the offence he was self employed earning between K700 to K800 monthly from oil palm sales. Prisoner is an active member of the Galai AOG church. Compensation was demanded of K100, 000 but the defendant can afford to pay K5000 the amount set out in the criminal compensation Act. His family are willing to assist in the payment. But no payment has been made. There is no peace restored in the matter. In the State v Mongi [2007] PGNC 135; N3259 (12 December 2007) prisoner killed the victim a 7 year old girl who was collecting nuts. He followed and grabbed her. He led her to the cliff and punched her concussing her. Then he carried her to another area. There he tried to punch her again but missed and hit a rock. The same occurred again he became incensed and twisted her neck killing her instantly. He pleaded guilty and was effected by the voluntary consumption of marijuana. The Court sentenced him to death.
    
13. As in that case the venerable, frail, young, old, and weak of society must be protected. Here is a 14 year old who has a long life ahead of him terminated with extreme precision by the prisoner. There is no other to turn to except the rule of law. Because life is lived only once it must be protected by the rule of law. The Constitution is for all people prisoner and deceased alike each is entitled by it to the full protection of the law. By that Constitution there must be hope for the deceased who is now silenced that Justice will be served his demise. Prisoner has by his own choice given his antecedents and background, set out in the presentence and means assessment reports, chosen his path to seriously breaching the law as set out. He is a first offender and that is about all in his favour. Weighed with all the aggravation set out above it bears little and is insignificant and inferior compared to the gravity of the offence he has committed. The discretion by section 19 of the Code is by law and must have material to be the basis upon which its powers can be invoked not without. There is no material to invoke here nor is there apparent or identifiable extenuating circumstances as in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) to deviate other than what is due given all facts and circumstances. It is not a sorcery related killing as in State v Mesuno [2012] PGNC 80; N4701 (8 June 2012). There are no good reasons to deviate from what is due to the prisoner by his own facts and circumstances: Sanawi v The State [2010] PGSC 31 ; SC1076 (29 September 2010).
    
14. In the State v Pius Kulu [2018] PGNC 435; N7542 (25 October 2018) prisoner laid in ambush and shot the deceased with a gun through the heart killing him. He was convicted of wilful murder and sentenced to life years because the deceased and his group were coming to the area of the deceased. It would have been a different sentence if it was the prisoner who sought out and killed the deceased. Here Prisoner laid in wait in ambush for the deceased and the others who came his way. He encircled off the deceased and froze him and then effected the fatal blows leading to death. It was an attack uncalled for.
    
15. It would be likened to State v Mark Poroli [2004] PGNC 113; N2655 (25 August 2004) where the policeman was told to kneel and say his last prayers after which he was shot in the head and then thrown down a deep ravine. It was a deliberate and calculated act to kill the deceased and set in motion to attain that fact. The death penalty was imposed. Here it is the same the deceased is a 14 year old child at the mercy of the prisoner. Prisoner had the power in the bush knife that he had poised either to desist in the blow that was to be delivered or not to. The latter would have given back the life of the deceased. He chose the former exterminating the life of the deceased. And it is repeated blows to the hand the head instantly killing him. It is now entrenched that multiple deaths will draw out the death penalty: State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul, Bothia Agena [2011] PGNC 314; N4241 (4 April 2011). Eight (8) persons were wilfully murdered on a boat by the five prisoners. Each of them was sentenced to 8 death sentences each 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 without mercy the life of another the penalty is the ultimate of death. And in this regard, I adopt the words of the Supreme Court in Ume v The State (supra) adopted in Erebebe v The State [2013] PGSC 9; SC1228 (2 May 2013):
    

“....which is (a) premeditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person. The killing is unthinkable, consciousless, senseless, pitiless and unnecessarily tortuous see Profitt v Florida 428 US 249 at 255. The crime is committed by persistent, violent, wicked-tempered man with the uttermost ferocity and with cunning.” Regina v Peter Ivoro, per Prentice J at p.388-389. The offender’s culpability is so grave that the offender deserves execution. Whatever the extenuating and mitigating circumstances maybe, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender is so grave and reprehensible that the offender is undeserving of a chance to live his own life, and instead, it is only just and fair that the prisoner should pay for the crime with his own life. His banishment from the community is the only just and appropriate punishment for his crime in all the circumstances”

16. Considering the facts here the views of the Supreme Court are applicable here. Prisoner lived at section 13 and was angered that one of their youths Isaac Vitalis was assaulted by youths from section 16. Whose body was carried to the gathering place on the end of section 13 near section 12. It was intended that the youths from section 16 compensated those from section 13. There was dispute over it that lead to a fight involving those who were from section 13 and 16. They were throwing stones the deceased with the witnesses were blocked from the back so ran into the block of one Erick Ben Mando intending to escape the fighting that had erupted. They were from section 16 and succumbed to a bush knife attack by the Prisoner. It would appear that he laid in ambush ready for them as they came. He tried correcting another criminal wrong with another authored by him. Two wrongs do not make a right.
    

Issue

17. What then is an appropriate sentence upon the prisoner for the crime of wilful murder given the facts here?
    
18. Balancing all set out above Wesley Yanduo is a grown 25 year old married man armed with a very sharp bush knife laying in wait and ambush who did not hesitate to use it against a child of 14 years who was unarmed and simply fleeing violence that had erupted into a fight over a compensation payment of a dead body earlier brought for compensation and resolution that did not end peacefully but a death in return and payback. In Erebebe’s case for the wilful murder described in this way, “The ambush seemed well organized with professional combat precision. A convenient location was selected taking into account the terrain, the road condition and possible escape routes inferentially to achieve maximum result. Men armed with weapons were then assigned to locations and “laid in wait for their prey.”
    
19. “Second, different modes of Killings were adopted. Those who died from gunshot wounds were killed by a sudden burst of machine gun fire sprayed at the vehicle from hiding. When the vehicle stopped four children were cut on their heads with sharp bush knife in a ritualistic fashion. Jerry Junior, a boy aged 5 years old sustained a wound across the face and “T” sharp wound at the back of his head. Jerry Gina, a girl aged 4 years sustained a deep “J” shape laceration extended from the right eye brow to the left ear and a deep “C” Shape laceration to the back of her head. Jerry Jerry or Jerry Bata, a boy aged 5 years sustained two parallel massive larcerations on the left side of the head. Kenuve Ekebae a boy aged aged 4 years sustained a “Y” shape laceration to the side of the head and a “G” Shape wound to the back of the head. In each case the knife penetrated the skull into the brain.” There the court upheld the appeal against sentence by the Public Prosecutor set aside the sentence passed by the National Court and substituted the penalty of death against the prisoners for the death of four children and five adults. This case is parallel to the facts and circumstances before me and like offences will be treated alike. Consequently the penalty will be the same that was five adults in addition to four very young and helpless children were killed horrifically. Here is the same of a child aged 14 years old unarmed defenceless and weak at the mercy of the prisoner whether he survived that day or not. He was mercilessly and abruptly killed in a very sad and horrific situation. His family like any other family will be tormented whatever penalty is passed.
    
20. By the Constitution the country is Christian and commandment number 6 of the Ten Commandments of God says, Thou shall not kill and the bible Romans verse 6 lines 23 says for the wages of sin is death.
    
21. Wesley Yanduo of Yandokum, Kubalia, East Sepik Province for the conviction of the wilful murder of Naegel John Las on the 6^th of December 2015 at Galai Oil Palm Settlement You are hereby sentenced to Death.
    
22. The penalty of death shall be executed in accordance with law after the Statutory time limits set for appeal has expired.
    
23. Further I recommend that authorities of Government discharged with the functions under law of putting into place the death chamber or place where execution would take place according to law to fulfil that duty as by the Constitution be effected and discharged so that the orders of the court are carried out forthwith.
    

Orders Accordingly,

__________________________________________________________________Office of the Public Prosecutor : Lawyer for the State

Office of the Public Solicitor : Lawyer for the Defendant