SC740

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 34 OF 2001

SIMON KAMA

-V-

THE STATE

MT. HAGEN: SEVUA, KANDAKASI & LENALIA, JJ.
2004: 29th March
1st April

APPEAL – PRACTICE & PROCEDURE - Appeal to the Supreme Court – Appellants obliged to specify meritorious grounds of appeal – Failure to do so amounts to frivolous and vexatious appeals and an abuse of process - Supreme Court Registrar shall refer such appeals to the Supreme Court for summary determination to avoid wastage of limited public funds and limited judicial time - s.11 of the Supreme Court Act Chp.37. 

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court cannot interfere unless a clear case of error is demonstrated – Lenient sentence – No error vitiating the trial judge’s exercise of discretion – Case warranted cross-appeal – No cross-appeal – Consistent pattern of the Public Prosecutor with no apparent good reason – Public Prosecutor under Constitutional duty to charge and ask for appropriate sentences – Failure by Public Prosecutor to cross-appeal or ask for an increase in sentence no bar to Supreme Court exercising its powers under s.23(4) of the Supreme Court Act Chp.37 

CRIMINAL LAW – Appeal against sentence – Murder – Offence committed in the course of armed robbery on highway - Death due to gunshot to the head - Guilty plea – First time offender – No prove of customary compensation paid – Aggravating factors outweighing factors in mitigation – Sentence of life imprisonment warranted – Sentence imposed too lenient – No Cross-appeal against sentence – Sentence of 25 years confirmed with warning that in future the Supreme Court will exercise its powers under s. 23(4) of the Supreme Court Act (Chp.37). 

Facts:

This was an appeal against a sentence of 25 years on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account the appellant’s guilty plea and not allowing him to address the Court on sentence. The offence was committed in the course of conducting a planned armed robbery with the use of three firearms on a highway. The deceased, then a driver of a motor vehicle, slowed down to stop and the appellant shot the deceased on the head killing him instantly. The vehicle ended up in a drain with passengers in it who managed to run away as the appellants and his co-offenders attempted to shoot them too. Unfortunately, the appellant and his co-offenders pulled down a female passenger and robbed of her a sum of K50.00. On the presentation of an indictment charging him with murder, the appellant pleaded guilty while one of his co-offenders denied the allegation. After his sentence and the lodgment of his appeal, the appellant claimed that his co-offender received a lesser sentence of 15 years after a trial and so he asked for the same sentence but provided no evidence supporting this claim. 

Held:

1.	The learned trial judge did take into account all of the factors in the appellant’s favour, including his guilty plea.

2.	Given the prevalence of the offence and past sentences not appearing to deter other would be offenders and that there can be no excuse, except as provided for by law for the taking away of another person’s life and that murder is more serious than manslaughter, the sentencing range for the categories of murder identified in The State v. Laura (No.2) [1988-89] PNGLR 982 is now varied in the following terms:

(a)	where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;
(b)	where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;
(c)	where there is a guilty plea with aggravating factors where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty one (31) years to life imprisonment;
(d)	on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21);
(e)	on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;
(f)	where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty one (41) years to life imprisonment;

A trial judge has the discretion to impose a sentence below these guidelines where there exist very good mitigating factors such as a very young person persuaded by others to commit the offence falling short of the defence of compulsion to commit the offence or for other very good reason.

3.	The sentence of 25 years in the present case was a lenient sentence considering that, the case was in fact a wilful murder committed in the course of committing other serious offences but reduced to murder for reasons only known to Public Prosecutor. 

4.	The Court was most surprised that the Public Prosecutor presented an indictment that did not reflect the facts of the case and thereafter failed to cross-appeal against sentence. In future, the Supreme Court will exercise its powers under s. 23 (4) of the Supreme Court Act (Chp.37), whether or not there is a cross-appeal as unmeritorious prisoner appeals are wasting the Courts time and are draining public funds unnecessarily.

5.	In the circumstances, the learned trial judge did not fall into any identifiable error against the appellant that vitiated the exercise of his sentencing discretion thereby warranting an interference by the Supreme Court in the terms asked for by the appellant. Accordingly, the appeal was dismissed with the sentence by the National Court confirmed.

Cases cited:
Wanosa & Ors v. The Queen [1971-72] PNGLR 90.
Norris v. The State [1979] PNGLR 605.
Ian Setep Napoleon v. The State (unreported judgement delivered on 18/05/0) SC666.
State v. Laura (No. 2) [1988-89] PNGLR 98.
Simbe v. The State [1994] PNGLR 38.
The State v. Joseph Ulakua (23/05/02) N2240
The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186.
The State v Tom Keroi Gurua & Ors (11/12/02) N2312.
The State v. Kevin Anis and Martin Ningigan (07/04/03) N2360.
Sakarowa Koe v. The State (SCRA 47 of 2003 delivered 01/04/04).
The State v. Peter Plesman and Paul Moaina (30/10/97) N1657.
The State v. Ian Napoleon Setep N1478.
The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65.
The State v. Godfrey Edwin Ahupa N1789.
The State v. Ben Simakot Simbu (No.2) (CR NO.1413 of 2002 judgment delivered on 26/03/04).
Antap Yala v. The State (unreported Supreme Court Judgment dated 31 May 1996).

Counsel:
Appellant in Person.
Mr. R. Auka for the Respondent.

1st of April, 2004

BY THE COURT: 	Simon Kama, you are appealing against a sentence of 25 years less the time you had already spent in custody awaiting your trial for murder, which the National Court imposed on 10th April 2001. Sixteen days later, you lodged your appeal against that sentence. 

You list four items as your grounds for appeal in your notice of appeal. These are:

"1.	I admitted this case as pleaded guilty and also make life easy for the National Court Judge to rule its decision as required.
2.	But the National Court Sentence imposed as feel to excessive.
3.	That National Court Judge did not give chance for me to talk before handed down the decision.
4.	As N/Court read ‘one statement concerning the car stop then shooting the victim was not happy."

In our view, the first two grounds amount to only one ground and that is, in view of your guilty plea, the sentence of 25 years is excessive. The third ground concerns a prisoner’s right to address the Court before a decision on sentence and we are not too sure as to the nature of your complaint in relation to the fourth ground.

We can easily determine the third ground of you appeal by reference to the record of the proceedings before the National Court. The relevant part of the record of the proceedings before the National Court appears at page 25 of the appeal book. From a perusal of this part of the records, we find that the Court gave you the opportunity to address it before its decision on your sentence. This is apparent from the following:

"HIS HONOUR: … Simon Kama do you want to say something before I ask your lawyer to speak on your behalf?

THE ACCUSED: Yes your Honour. I have something to say. This trouble I did not mean to do it. We wanted to get something and the man has died and we are here in front of the court. We have broken the law of PNG and we are saying very big sorry. I was in custody for long time and my people did not come and see me in custody. Can the court have mercy and give me light sentence. That is all."

Given this, we find this ground without any merit. According we dismiss this ground of your appeal.

The fourth ground of your appeal is too vague. You did not even elaborate it during the hearing of your appeal. An appellant whether represented by a lawyer or not, should be specific and unambiguous on the reasons for his or her appeal. The country does not have extra funds to throw away by continuing to allow the Supreme Court to sit where an appellant does not know from the outset his reasons for appealing. Such a purported ground of appeal is no ground of appeal. It thus, amounts to an abuse of the appeal process. Accordingly, we dismiss this purport ground of you appeal.

In so doing, we note that, the Supreme Court has a duty to the nation to avoid unnecessary wastage of the limited public funds allocated to it. It is also duty bound to use its limited time to deal with only meritorious appeals. That is why, in our view, Parliament enacted the provisions of s. 11 of the Supreme Court Act in these terms:

"11.	Frivolous or vexatious appeals.

(1)	Notwithstanding this Act, where the Registrar is of the opinion that a notice of appeal, or a notice of an application for leave to appeal, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Supreme Court for summary determination.

(2)	Where the Registrar refers a notice of appeal, or notice of an application for leave to appeal, to the Supreme Court under Subsection (1), and the Court is satisfied that the appeal—

(a)	is frivolous or vexatious; and

(b)	can be determined without a full hearing,

it may, notwithstanding anything in this Act or any other law, dismiss the appeal summarily without calling on any person to attend the hearing."

In the past and to date, we have seen many prisoners and other appeals come through for full hearings before Supreme Court, which were clearly frivolous and vexatious and in most cases without setting out the grounds of appeal warranting a full hearing by the Supreme Court. This has led to an unnecessary build up in the Supreme Court list and the spending of substantial amounts of public funds and judicial time. This has been consequential on a failure by the Registrar to exercise the powers vested in that office by s.11 of the Supreme Court Act. We are firmly of the view that the time has come to put an end to this unnecessary waste of public funds and limited judicial time. We are encouraged to note therefore that the judges have agreed in their consultative meeting agreed to the Registrar exercising the powers under s. 11 of the Act. In line with that, we urge the Registrar to exercise those powers immediately in relation to all matters now pending on the Supreme Court list and all fresh appeals lodged from this day forward.

Now, turning to the remaining grounds, we note that you are essentially claiming that the sentence imposed against you is excessive, given your guilty plea. Clearly therefore, the appeal is against the severity of sentence. When that is the case, the law is clear; the Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates a sentence to be manifestly excessive. A sentence could be manifestly excessive where, for example, the trial judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence. That means, this Court must be satisfied that the learned trial judge fell into some demonstrable error, which has the effect of vitiating the trial judge's discretion on sentence before it can change a sentence imposed by the National Court.

Whether the Court below took into account the factors in mitigation of the appellant, which includes your guilty plea and being a first time offender, is an issue the records of the proceedings, in particular, the judgment, the subject of this appeal can help resolve. The related question of, whether the sentence appealed against is excessive, requires an examination of the relevant facts. Of these two, the first is easier to resolve. Accordingly, we turn to that issue first.

The relevant part of the judgment, appear at pages 43 and 44 of the appeal book in the following terms:

"Both prisoners in the case before me have pleaded guilty and expressed remorse. They have no prior convictions. They have said through their lawyer Mr. Aipe that they did a really silly thing. These are mitigating factors which I have taken into account in their favour in deciding the appropriate sentence. I have however not been informed by counsel of any compensation having been paid by the prisoners or their relatives so I cannot take that into account in their favour …

From the cases I refer to above, it appears that the increasing in sentence for murder which is committed the course of robbery is not having any effects. These types of murders are still being committed so there is a need for the court to sound a warning to others who contemplate killing their victims in similar circumstances that such actions cannot and should not be tolerated by peace loving and law abiding members of our community. Whilst I accept that this is not the worst type of murder as in Manepo’s case, the fact that it was carried out according to plan and without giving any chance to the deceased to surrender warrants a sentence in the vicinity of those that had been imposed in the State v. Peter Plesman and Paul Moaina … as well as in the State v, Aiavu Kaik’s case. The sentence I therefore consider appropriate in the circumstances of this case after taking into account the mitigating factors I have alluded to above is a period of 25 years in hard labour."

As could easily be seen, the learned trial judge did take into account your guilty plea and being a first time offender before arriving at the sentence of 25 years. 

The maximum penalty prescribed by Parliament for the offence of murder is life imprisonment. The Court correctly noted that, increasing sentences for murder in the course of armed robbery or other offences is not having any effect. Given that, in our view, your case warranted a more sever penalty. However, the learned trial judge decided to impose the sentence of 25 years because of your guilty plea and being a first time offender. Notwithstanding that, you have appealed against that sentence claiming it is excessive. Hence, the question is was this sentence excessive.

The question of whether or not your sentence of 25 years was excessive in the particular circumstances of your case requires an examination of the relevant facts and kind of sentences imposed in similar cases. We first note that the relevant facts are these. You and you co-offenders, planned to rob Busu Coffee of some money. However, you had no motor vehicle to use for that purpose. You therefore, waited for a motor vehicle on the highway at a creek. At that time, you armed yourselves with a 303 rifle, two homemade guns with 100 rounds of ammunition for the rifle and 60 rounds for the homemade guns. 

As you laid in waiting, the deceased approached in a Toyota Land Cruiser motor vehicle, with about five passengers on board. You stepped out on to the road from your hiding and moved toward the vehicle with your guns pointed at the driver, now deceased. On seeing that, the deceased slowed down to stop. Instead of allowing him to do that, you Simon Kama shot the deceased on his head killing him instantly. The medical report describes the shooting as one shot in a downward position thereby causing the bullet to penetrate into the head without an exit. The shot caused multiple punctures of the scalp covering an area of 8 to 9 cm. The shot resulted in multiple fractures of the skull at the site of the shot. Brain matter was of course, damaged with bleeding all around it.

Immediately upon the shooting dead of the deceased, the vehicle went out of control and ended up in a drain. The passengers in it jumped off and ran away in fear of their own lives as you tried to shoot them as well. Unfortunately, a female passenger was not able to get away that easily. You pulled her down and proceeded to rob her of all she had, a K50.00. Thereafter you fled the scene.

On these facts, this was a cold-blooded murder. The circumstances did not warrant the killing. As you came out from your hiding with your guns pointed at the deceased and the others, the deceased slowed down and was about to stop the vehicle when you shot him on the head causing his instant death. You shot him from close range causing serious damage to the deceased head and brain. You also put at risk the lives of the passengers, when you shot their driver and the vehicle went out of control. Then as if the shooting of the deceased was not bad enough, you also tried to kill the others and stole from one of the passengers a sum of K50.00.

Killings in the course of committing another serious offence, such as rape or armed robbery is on the increase and as the learned trial judge correctly noted the increase in sentences for killings in the course of a robbery has not stopped the commission of the offence and cause a decline in these types of offences. A review of the sentencing trend in these types of killings makes that clear.

As already noted, Parliament considered the unlawful killing of another person, no matter whatever the circumstances are, serious and prescribed life imprisonment as the maximum penalty. However, the Courts have imposed sentences far short of that, an approach strengthened by the National Court judgment in The State v. Laura (No. 2). That judgment suggested the following guidelines for sentencing in murder cases:

(a)	where there is a guilty plea with no special aggravating factors, a sentence of six years;
(b)	a sentence of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and
(c)	on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

The prisoner in that case pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He received a sentence of eight years where there were no special factors in aggravation or in mitigation.

Subsequently, the Supreme Court in Simbe v. The State, adopted the above guidelines and applied them. That was in the context of an appeal against a sentence of 14 years following a plea of guilty to a charge of murder. Since then, there has been an increase in sentence for murder cases. In The State v. Joseph Ulakua, the National Court imposed a sentence of 20 years. In that case, the prisoner killed his wife after she had run away from him, after allegedly having an affair with some men in the prisoner’s own village. He pleaded guilty to the charge and had no prior conviction.

Prior to the above judgment, Sevua J., imposed on a guilty plea, a sentence of 30 years against two prisoners. They acted in concert with others and killed a person with serious injuries to 5 others with one of them losing his sight in a motor vehicle which failed to stop at a roadblock the prisoner and his co-offenders set up to rob motor vehicles and their passengers. Kandakasi J. in The State v. Tony Pandau Hahuahori (No 2) acknowledged that, when dealing with their co-offender who pleaded not guilty but convicted after a trial. The Court found the prisoner there as the gunman that shot the deceased and imposed a sentence of life imprisonment.

A few months later, Kirriwom J, in The State v Tom Keroi Gurua & Ors (11/12/02) N2312, imposed a sentence of 50 years and 20 years imprisonment against the prisoners. The 50 years was against the gunmen who shot the deceased who had gone to the aid of his daughter whom the offenders tried to abduct. They were respectively aged 18 and 20 years old.

One of the prisoners, David Laim Bawai appealed against his sentence of 50 years. This Court heard his appeal in this circuit and will shortly hand down its decision dismissing the appeal on the basis that the sentence he received is too lenient. He should have received the maximum of life imprisonment given the seriousness of the offence and the prevalence of the offence warranting increases in the sentences. 

More recently, Kandakasi J. in, The State v. Kevin Anis and Martin Ningigan, imposed a sentence of 37 years against the prisoners. In that case, the prisoners were part of a gang that carried out an armed hold up on the Sepik Highway with intend to rob the motorist. They set out to execute the planned robbery but it went bad resulting in the killing of a passenger and the wounding of another. This was after a trial. The prisoners were not the gunman doing the killing and wounding. Kandakasi J reviewed the sentencing trend and observed in that judgment that:

"This clearly shows a trend of increased sentences, especially in cases where a person is killed in the course of pursuing another unlawful purpose. Likewise, there is an increase in the kind of sentences that are being presently imposed against armed robbers. This is reflective of the fact that there is so much killing, almost every day in the course of other unlawful purposes such as armed robberies. This is disastrous for our country. The adverse effects of such violent crimes as murder, armed robbery and rape on the country as a whole, has been adequately expressed in numerous judgments of both this and the Supreme Courts,… It is not necessary to repeat them. Sufficient only to say that society is saying enough is enough and that such offenders should be dealt with severely." 

We agree with his Honour’s observations as well as his subsequent observations in The State v. Joseph Ulakua where he said:

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other persons life without any lawful excuse or one that is not permitted by law. The onus is therefore … on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes, of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of the Constitution and you find that that presumption is only in relation to guilt. Once guilt is established or admitted, the presumption no longer exists."

Taking all of these, including the particular facts of your case into account, we find that the sentence was more lenient and not excessive as you claim, given that, you were the gunman that shot the deceased dead. Before that, you planned to carry out a robbery. For that purpose, you needed a motor vehicle. Therefore, you waited for a motor vehicle to turn up. When the deceased turned up, you approached him and pointed the gun at him. He slowed down to stop. Notwithstanding that, you proceeded to shot him at close range without any warning, resulting in his death. You could have achieved your other unlawful purpose without killing the deceased. It was uncalled for and executed in cold blood. Not only did you kill the deceased but you also, tried to kill his passengers and robbed from a female passenger.

The cases the learned trial judge found to be closer to your case were decide some four years back. Since then as the learned trial judge acknowledged and as we have in this judgment, killings in the course of committing other serious offences have not stopped, even though, there has been an increase in the sentences. Given that, your case warranted a sentence beyond those already imposed, but his Honour chose to give a sentence that may have been appropriate four years ago. This error was however, in your favour and this leads us to the next consideration.

If the Public Prosecutor cross-appealed or asked for an increase in the sentence, we could have done that by imposing the maximum prescribed sentence of life imprisonment. In saying that, we note that, this Court has power under s. 23(4) of the Supreme Court Act to increase the sentence in appropriate cases. In this regard, we repeat what we have just said in Sakarowa Koe v. The State and the others also delivered today, where we have just observed and said:

"We note that, in many instances, the Public Prosecutor, for reasons only known to him, has not filed any cross-appeals or lodge appeals in clear cases of very low sentences in very serious cases of rape, willful murder, murder, manslaughter and armed robbery notwithstanding the repeated calls by the community for tougher penalties. This Court has raised this issue formerly in its judgments as in Jimmy Ono v. The State and notes with concern that, the Public Prosecutor appears to have done nothing about it, evidenced by the lack of any appeals and or cross-appeals in clear cases such as this. In these circumstances, we now warn that, the Supreme Court will proceed to exercise in appropriate cases its powers under s. 23 (4) of the Supreme Court Act, whether or not the Public Prosecutor cross-appeals against prisoner appeals and whether or not that office requests an increase in the sentence. There is a continuous waist of limited public funds and the Court’s time because of the Supreme Court allowing unmeritorious cases to continuously proceed to a hearing with no penalty whatsoever against such appellants. It is about time now that, that kind of leniency should come to a stop to put an end to the unnecessary wastage of the limited public funds and the Court’s limited time. We are of the view that, if the Supreme Court proceeds to exercise in appropriate cases, its powers under s. 23(4) of its Act, it will enable only meritorious appeals to come through and not just about every prisoner’s baseless appeals just for the sake of appealing."

In addition, given the ready commission and prevalence of the offence of murder coupled with serious aggravating circumstances in which some of them are committed, we consider the time has also come for this Court to seriously, reconsider the guidelines set by State v. Laura (No. 2) and Simbe v. The State. These guidelines were set in the 1980s and in the early 1990s. The circumstances in which those guidelines were set are no longer the same today. Further and more importantly, there is a lot of unnecessary and uncalled for killing today than it was before. Progressive increases in the sentences for this offence has failed to deter other would be offenders. 

To the offenders, the lives of their victims have become so cheap but when it comes to a few years or life imprisonment for them for the taking away the life of another, their lives becomes so precious evidence by their ready appeals. Both this Court and the National Court, in our respectful view, have indirectly contributed to that view of the offenders by imposing far too lenient sentences as in The State v. Peter Plesman and Paul Moaina, which was a case of double murder of two brothers in their residential area. That case, in our view warranted the death penalty and falling short of that, life imprisonment. Similarly, we are of the view that the Public Prosecutor has contributed to this view of the offenders by his choosing to present indictments for lesser charges such as murder from wilful murder and manslaughter from either wilful murder or murder when there is clearly a serious case warranting a wilful murder or murder charges. Further, in our view, the Public Prosecutor has further encouraged such views of the offenders by failing to appeal or cross-appeal against clearly lenient sentences as in The State v. Peter Plesman and Paul Moaina.

In our view, this view of offenders have come about because of an apparent misapprehension that murder cases have different categories influenced by Bredmeyer J.’s classification of wilful murder cases in Ure Hane v. The State in these terms:

1.	Wilful murder committed in the cause of committing a theft, robbery, a break and enter, or a rape.
2.	Wilful murder of policeman or a prison warder acting in the execution of his duty.
3.	Wilful murder committed in the cause of or for the purposes of resisting, avoiding or preventing lawful arrest or assisting in an escape from a lawful custody.
4.	Wilful murder of a person in police or court custody.
5.	Wilful murder in a payback killing situation of a completely innocent man.
6.	Wilful murder in a second or third murder.
7.	Any murder where the offender is a long record of violence such that he is likely to commit such offences in the future.
8.	Wilful murder of the Governor General, the Prime Minister, the Leader of the Prison Commander, the Speaker of the National Parliament, the Chief Justice, a Bishop, a Visiting Prime Minister, the Pope, or other VIP’s.

These guidelines have the tendency to suggest at first glance that, there are different categories of life, some of which are more important while others are not. It also has the tendency to suggest that, it is not a serious offence to kill a person in other settings. Therefore, one can get way with it by a sentence other than the prescribed maximum penalty. In our view, this demonstrates the fact that, it is a misconception to suggest that life has different categories and therefore, wilful murder, murder and manslaughter as different categories. This requires correction and we do so by stating that, it is a serious offence for a person to kill another person in circumstances not permitted by law. It does not matter who the deceased person was and or the reasons of his murder, except as may be provided for by law. Therefore, a sentencing judge should start approaching sentence with a serious consideration of the prescribed maximum sentence first in every case of murder.

The reason for this is simple. As Sevua J. said in The State v. Ian Napoleon Setep in the context of wilful murder:

"Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, … that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, … to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others."

Similar views have been expressed by Woods J. in The State –v- Yapes Paege & Relya Tanda. There his Honour asked and commented:

"But how can wilful murder, after the clear statutory distinction of it from two other levels of unlawful killings – murder and manslaughter – lend itself to degree? There cannot be a more wilful murder. Oh, yes, there may be different levels of violence used, but the end result is the same. The victim, if he could talk from beyond the grave, would surely see no difference between one gunshot to the head and four shots to the head, whereas in a grievous bodily harm there would be a difference between one axe wound and several axe wounds. Wilful murder is the intention to kill and the carrying out of that intention, the end result of which, regardless of the amount of violence used, is the extinction of human life."

Kirriwom J. said the same thing in The State v. Godfrey Edwin Ahupa, in these terms:

"… when you look at all these cases of deliberate and calculated murders, whether they involved pre-planning or not, whether they were carried out swiftly and quickly or slowly and in the most gruesome and barbaric or agonising manner, or whether the victims are gunned down, axed, knife or clubbed to death by heavy or blunt objects, the end result is all the same, a human life has been prematurely terminated."

Kandakasi J. very recently cited these passages with approval in The State v. Ben Simakot Simbu (No.2) (CR NO.1413 of 2002 judgment delivered on 26/03/04) and noted that:

"If anything, this difficulty … demonstrates the fact that the sanctity of life itself is not easily open to categorizations. As such, there is an abundance of difference of opinions as to what amounts to a worse case of wilful murder, warranting the maximum penalty of death. It is thus possible that one judge could find a case to be a worse case of wilful murder and another judge could easily come to a different conclusion, given that there is no fixed mathematical or scientific formula to go by. In so doing, the kind of sentences imposed may differ greatly.

Amidst this difficulty, there appears to be consistency in approaches by the Courts. A case with more aggravating features could qualify to be a worse case, whilst one with more factors in mitigation would be less serious, even though they will all be wilful murder cases, where there is an intention to kill."

Considering these comments along with those which we already expressed, we are of the view that it is erroneous to classify murder cases except has is provided for by the Criminal Code as a starting point. The Criminal Code classifies different categories of murder in terms of wilful murder, murder and manslaughter, where intention of the offender at the time of committing the offence is a key distinguishing factor. A murder is wilful if there is an intention to kill while there is no such intention but an intention to cause grievous bodily harm in the case of murder and where there is neither of these elements, it is manslaughter.

As already noted, there is now a prevalence of the offence of unlawful killings. This requires a close examination of sentencing approaches and before that the presentation of indictments. As we noted before, there are clear cases of serious wilful murder cases reduced to murder or manslaughter and murder cases reduced to manslaughter. This is affecting the way in which sentence is approached. We therefore suggest (for we cannot direct) that the Public Prosecutor seriously consider and present indictments according to the dictates of the law and the particular facts in any given case, in the interest of protecting the community for which benefit, both that office and the criminal justice system exists.

On the Court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2) and Simbe v. The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a)	where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;
(b)	where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;
(c)	where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty one (31) years to life imprisonment;
(d)	on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21) years;
(e)	on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;
(f)	where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty one (41) years to life imprisonment;

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence may warrant a sentence lower than, any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A judge may therefore depart from them in appropriate cases for very good reasons.

The tariffs suggested notes that a murder is more serious than manslaughter, because in a murder case there is an element of an intention to cause grievous bodily harm, whereas a manslaughter case strictly speaking, concerns accidental deaths. Murder cases should therefore attract sentences above those imposed in manslaughter cases. We note, that the Supreme Court noted this in Antap Yala v. The State the Supreme Court noted this. Accordingly, the tariffs we have suggested here is above those we have suggested for manslaughter cases in Sakarowa Koe v. The State.
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Lawyers for the Appellant:			In Person
Lawyers for the Respondent:			The Public Prosecutor