The State v Andrew Aisa Keake (No 3) (2001) N2079

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 27 March 2001
• Citation: (2001) N2079
• Court: National Court
• Year: 2001
• Judgement Number: N2079

Full Title: The State v Andrew Aisa Keake (No 3) (2001) N2079

National Court: Kandakasi J

Judgment Delivered: 27 March 2001

N2079

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 30 of 1999

THE STATE

v.

ANDREW AISA KEAKE (No.3)

WAIGANI: KANDAKASI, J.

2000: November 14 and 15

2001: February 7, 8 and 27

CRIMINAL LAW — Sentence — Particular offence — Wilful murder — Death caused by a single shot from a shotgun to the neck area — Imprisonment for term of 20 years.

Cases Cited:

Ure Hane -v- The State [1984] PNGLR 105

Avia Aihi -v- The State (No. 3) [1982] PNGLR 92

Goli Golu -v- The State [1979] PNGLR 633

Mako Ranjiji -v- The State [1994] PNGLR 44

Kutapa Keapu -v- The State [1994] PNGLR 135

The State -v- Angaun Kakas & 3 Others [1994] PNGLR 20

The State -v- Paege and Ralya Tanda [1994] PNGLR 65

Yandasing -v- The State [1995] PNGLR 268

Counsels:

Mr. K. Umpake, for the State

Mr. D. N'Dranoh, for the Defendant

27th March 2001

DECISION ON SENTENCE

KANDAKASI, J: This Court found you guilty of wilful murder of one Theodore Aisa Ani in the written judgement the Court delivered on the 27th February 2001. Arguments were then heard both for and against you on the kind of sentence you should receive. I then reserved a ruling on that to the 23rd March 2001 with liberty to bring that forward if the decision was ready before that time. Unfortunately, I was sent to Goroka on short notice and that made it difficult for me to deliver the Court's decision until today. This is the Court's decision on sentence.

Issue

The main issue is, whether this case is one of the "worse types" of wilful murder case and therefore the maximum prescribed penalty of death should be imposed? This issue can properly be determined by having regard to the both the Supreme and National Court decisions on point having particular regard to the particular facts of the case before me.

Facts

The relevant facts are set out at page 2 of the decision on the verdict delivered on the 27th February 2001. In summary, however, for the purposes of sentencing the facts can easily be summarised in terms of this being a case of wilful murder of an unsuspecting victim. The deceased was a relative of yours and your were the only person with the deceased at the time of his death. On the available evidence, this Court found that the deceased was shot at a close range by with a shotgun. You claimed that the deceased committed suicide but on the evidence, the Court found that there was no suicide. Instead it was a case of wilful murder by you. The killing appeared to have been related to or following a dispute between your family and that of the deceased over land on which the deceased's family put up a house. Apart from that, there was no other reason for which the deceased could have been killed.

The Offence

The offence of wilful murder is prescribed by s.299(1) of the Criminal Code (Chapter 262) (hereinafter "the Code") as follows:-

(1) Subject to 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."

It is now well accepted that s.299 of the Code is subject to the provisions of section 19 of the Code. And that section reads:-

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

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

In view of the wording in Section 19(1)(aa) of the Code sentences other than death have been imposed for persons found guilty of wilful murder as in your case.

Your lawyer, drew the Court's attention to the Supreme Court decisions in Ure Hane -v- The State [1984] PNGLR 105, Avia Aihi -v- The State (No. 3) [1982] PNGLR 92 and Goli Golu -v- The State [1979] PNGLR 633 and submitted that the maximum prescribed penalty of death is usually reserved for the more serious or "worst type" of wilful murder of cases. In Ure Hane -v- The State (supra) the Supreme Court referred to the case of Avia Aihi and quoted the following from page 92 of that judgement:-

The basic sentencing principle of the proportionality to the offence applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed on the cases properly categorised as "worst type" cases.

The court then quoted the following from Goli Golu at page 653:-

In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence.

Since the judgement in those cases, the penalty for wilful murder has been increased from life imprisonment to death by an amendment to the penalty provision in 1991. Accordingly, the principles enunciated in those cases apply with modification to say that the maximum penalty of death should be reserved for the "worst type" of wilful murder cases.

Bredmeyer, J. in the Ure Hane case without exhausting the list, provided the following list of cases he considered to be serious kinds of wilful murder from pages 107 — 109 of the judgement:

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.

Then on page 109 of the judgement, His Honour proceeded to say:-

I consider that if a wilful murder falls into any one of the above categories, a...