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State v Wapi [2022] PGNC 54; N9445 (14 February 2022)
N9445
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1411 OF 2017
THE STATE
V
BINAS WAPI
Kokopo: Tusais AJ
2021: 07th September
2022: 14th February
CRIMINAL LAW – Sentence - Wilful murder – Criminal Code section 299A (1) – Killing of a child – Very serious
aggravating factors – Case falls into worst category of wilful murder – Life imprisonment -
Cases Cited
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
Ure Hane vs The State [1984] PNGLR 105
Steven Loke Ume v State (2006) SC836
Manu Koivi (2005) SC789
Rex Lialu v The State [1990] PNGLR 487
Tonny Imunu Api v State (2001) SC684
Counsel
Mr L Rangan, for the State
Ms C Pulapula, for the Accused
DECISION ON SENTENCE
14th February, 2022
- TUSAIS AJ: The prisoner was convicted after a trial on a charge of wilful murder, contrary to s. 299 (1) of the Criminal Code Act, Ch. 262 (the Code) This is the Court’s ruling on sentence.
- Eleven-year-old Noel Ari was found dead with his forehead very badly bashed in and most of his brain matter missing from the skull
cavity. There was also a deep cut on the young boy’s right foot. He was found lying under freshly cut cocoa branches not far
from his residence. This brutal killing occurred at Tabuna Coconut and Cocoa plantation located at Bitapaka LLG in Kokopo District
of East New Britain Province.
- Court found that between 4.00 and 5.00 pm on 9th August 2017, the prisoner went to the house of the victim and asked his father, Ari Kuntonio, to borrow a guitar. Mr. Kuntonio told
the accused that he did not have a guitar. The victim was also there together with his mother and 11-year-old twin-brother, Joel
Ari. Before this date the prisoner had never once visited their residence.
- After finding out that Ari Kuntonio did not have a guitar, the prisoner walked off. Ari Kuntonio also left his house to go to work
and his two sons went into the cocoa and coconut plantation to cut cocoa branches to make their toys. Noel went ahead and climbed
onto a cocoa tree, with a knife in his hand to cut a cocoa branch. As Joel was trying to climb a nearby cocoa tree, he saw the prisoner
suddenly appear and go towards the cocoa tree that Noel was on. When he reached it, he swung his bush knife at Noel and cut his right
foot.
- Joel was shocked to see this so he fled back to his house and informed his mother and they ran back together to the scene. Inside
the cocoa garden they found out that Noel was already dead. His skull was fractured and there were brain tissues lying beside him
on the ground. The deceased child was taken to the morgue the next day. It was found through a post-mortem examination that he died
due to a severe brain injury caused by a skull fracture.
- The offender is 39 years old and comes from Entipi village, Maprik district in East Sepik and Rai Coast in Madang Province. He is
not married but has an adopted son aged 11 years old. He comes from a family of seven (7) children and he is the second born child
in the family. Both of his parents have died. He only completed Grade 1 at the Sonoma Adventist Community School in 1991 and did
not continue his education. At the time of the offence, he was employed as a labourer at the Tabuna Plantation.
- The issue that the court has to decide is the sentence to impose on the prisoner. I adjourned this case for sentence when the maximum
penalty was death. That is no longer the case since the amendment done to the Criminal Code recently. The maximum sentence of death
was repealed and in its place life sentence substituted as the maximum penalty.
- The facts and circumstances in which crimes are committed, vary from case to case. That is why sentences are imposed based on the
facts of each case. Homicide cases including wilful murder, murder and manslaughter are no different. Killings are committed for
many different reasons and in varied circumstances. In the case of Rex Lialu v The State [1990] PNGLR 487 at 497 Kapi DCJ (as he then was) made this observation in a manslaughter case.
'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused,
in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.
as stated in R v Phillips [1985] CR APP (RS) 235 at 237.”
- So, what sentence should this court hand down for this offence? Maximum sentences are usually reserved for the most serious and worst
type of any crime. Avia Aihi v The State (No 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105 all restate this principle of law. I consider that this crime easily falls into the most serious category of wilful
murder cases. It is a heinous crime.
- The case is aggravated by the following factors. First is that the victim was a young child. The Supreme Court in the case of Steven Loke Ume v State (2006) SC 836 listed the types of wilful murders considered to be the worst types that could attract imposition of the maximum sentence of death.
At the top of that list is the killing of a child, a young or old person or a person under some disability needing protection. The
key words in that category are ‘persons needing protection’. Children, old people and disabled people need protection
and care from the community. Courts have a duty to protect these vulnerable people, especially old people and young children who
are increasingly being subjected to cruel and inhuman acts of extreme violence. Children everywhere in the world are normally loved
and cherished. It is after all, a natural part of life and humanity. Children represent hope for the future and continuity of their
family line, community and the wider world. While they are young and innocent, they also give a great deal of joy and happiness to
their parents, siblings and loved ones. That is what makes this particular killing so tragic. A young innocent school boy with unrealised
potential, had his young life snuffed out for no reason at all by a cruel, heartless and psychopathic man.
- I also consider as aggravating, the manner of death. This killing was done in a very brutal and vicious manner. The child was first
cut with a bush knife on his foot causing him to fall off the cocoa tree he had climbed. Between the short space of time from when
the deceased’s twin brother fled until he brought his mother back, the prisoner bashed the little boys head in. How he did
it is not known because no one saw him and he has not admitted or explained. But there is photographic evidence and witness statements
of brain matter found scattered in the cocoa garden from the tree the child was on, to the location the body was hidden.
- This case is also made serious because it was premeditated and planned. There is evidence that when the prisoner arrived at Ari Kuntonio’s
house he was starring intently or very strongly at the victim. The motive for the killing was attributed to an argument that the
prisoner’s elder brother had with Ari Kuntonio, the father of the victim. Ari lived and worked as a security guard at Tabuna
coconut and cocoa plantation. He testified that on the day his son was killed he was at his house when the prisoner arrived between
4 and 5 in the afternoon. Mr Wapi asked Ari Kuntonio to borrow his guitar. Ari said he did not own one and did not even know how
to play guitar. The twin boys Joel and Noel, then aged 11 years, were also at home after returning from school. Ari gave evidence
that Binas Wapi walked around his house and was starring or looking intently at his son Noel. Binas Wapi did not sit. He was standing
all the time and Ari said his eyes when he looked at Noel were ‘scary’ and he felt afraid. Ari left the twins to go to
work at the company fermentary located some distance away, marked as between Kerevat LLG Chambers and Junction to NARI which is about
one kilometer. Three minutes after he arrived at the fermentery, he heard that his son Noel had been killed.
- Ari Kuntonio when asked about the reason why his son was killed said this. On 06th August 2017 the accused elder brother Moses, went to his house and said some threatening words to him. Earlier Moses’ daughter
had run off with another man to Maprik in East Sepik and Moses seemed to hold Ari Kuntonio responsible. He said to Ari in pidgin
language “Tambuna ya yumi stap. Yu stap na lukim” translated into English language ... “We are all living at Tambuna.
You just wait and see” Ari thought that Moses meant to hurt or even kill him and replied back that he was from Yangoru which
is a different district in East Sepik and he had nothing to do with Moses daughter running off.
- The prisoner has not shown any remorse. He declined to say anything during allocutus. He appeared to be unmoved and did not display
any emotion during his appearances in court before me.
- In considering the appropriate penalty to impose in this case, I take into account the submissions made by both counsels on sentence.
Defence lawyer asked the court to take into account two things which were favourable to the prisoner. First is that he had no previous
conviction and so was a first-time offender. The second factor was that he had acted alone and not in a group. Counsel submitted
that this case fell within the second category of cases listed in the case of State v Manu Kovi (2005) SC 789 and so a sentence between 20 to 30 years was appropriate. I must say that the mitigating factors as submitted are rendered insignificant
by the very serious aggravating factors in this case.
- The State prosecutor submitted that this particular killing fell into the third category in the case of State v Manu Koivi (2005) SC789 and so life sentence is appropriate. Those factors in Manu Kovi relating to categories of seriousness in wilful murder are now redundant
since the recent abolishing of the death penalty as the maximum sentence for wilful murder. Both lawyers made their submissions when
the death penalty was still applicable.
- This is a worst type of wilful murder case. The facts are similar to the wilful murder case reported in Tonny Imunu Api v State (2001) SC684. The appellant was convicted for the killing of a 14 year old school boy doing grade 6. In dismissing his appeal against life sentence
the Supreme Court said ...
“We are of the opinion that this was a worst type of wilful murder. A 14-year-old school student had his skull crushed in different
places. He died in bizarre circumstances, and we think that this is an appropriate case warranting the death sentence. We allude
to this because we cannot see any motive other than a blatant and complete disregard for the sanctity of a young life which was terminated
prematurely. To describe this killing as bizarre or brutal would clearly be an understatement, in our view.”
- I agree with the views expressed in Apis’ case (supra). The killing in this case is also very bizarre and chilling. His actions were monstrous. He acted like a wild animal
gone berserk in such a frenzied attack that the child’s skull was bashed wide open and brain matter were scattered all over
the area that he was killed. The prisoner had no respect for human life. The offender is an evil man, and a grave danger to society.
He must never be released back into the community. I therefore have no hesitation in imposing the maximum penalty for wilful murder
as amended recently, and that is life in prison.
16. The order of this court is that the prisoner is sentenced to Life Imprisonment.
Sentence accordingly.
________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused
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