The State v Ben Simakot Simbu (No 2) (2004) N2546

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 March 2004
• Citation: (2004) N2546
• Court: National Court
• Year: 2004
• Judgement Number: N2546

Full Title: The State v Ben Simakot Simbu (No 2) (2004) N2546

National Court: Kandakasi J

Judgment Delivered: 26 March 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentencing—Sentencing offenders a community responsibility—Necessary to require and consider inputs of the community—Community input not binding on the Court—Court duty bound to consider whether or not to act on the views of the community—Principles guiding that considered and applied—Constitution s158(1).

2 CRIMINAL LAW—Sentence—Double willful murder—Murder of mother and child after rape of mother—Piece of iron used to effect fatal blows to the head of deceased with intent to kill—No dispute worse case of willful murder—Only contest whether death penalty or life imprisonment—Death penalty imposed—Criminal Code s299.

3 Public Prosecutor v Don Hale (1998) SC564, Re Application by Anderson Agiru (2001) SC671, Application by John Mua Nilkare [1998] PNGLR 472, Avia Aihi v The State (No 1) [1981] PNGLR 81, Tau Jim Anis v The State (2000) SC642, The State v Irox Winston (2003) N2347, Goli Golu v The State [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v The State (No 3) [1982] PNGLR 92, The State v Andrew Aisa Keake (No 3) (2001) N2079, The State v Ian Napolean Setep [1997] PNGLR 428, The State v Yapes Paege and Relya Tanda [1994] PNGLR 65, The State v Godfrey Edwin Ahupa (1998) N1789, Charles Bougapa Ombusu v The State (No 1) [1996] PNGLR 335, The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997), Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa v The State (Unnumbered and Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4 May 2000), The State v Arua Maraga Hariki (2003) N2332, Tony Imunu Api v The State (2001) SC684, The State v Fredinand Naka Penge (2002) N2244 referred to

Decision on Sentence

___________________________

N2546

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1413 of 2002

THE STATE

-V-

BEN SIMAKOT SIMBU

(No.2)

VANIMO: KANDAKASI, J.

2004: 18th , 22nd and 25th March

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing - Sentencing offenders a community responsibility – Necessary to require and consider inputs of the community – Community input not binding on the Court – Court duty bound to consider whether or not to act on the views of the community – Principles guiding that considered and applied – Constitution s.158(1).

CRIMINAL LAW - Sentence – Double willful murder – Murder of mother and child after rape of mother - Piece of iron used to effect fatal blows to the head of deceased with intent to kill – No dispute worse case of willful murder – Only contest whether death penalty or life imprisonment – Death penalty imposed - Criminal Code s. 299.

Cases cited:

Public Prosecutor v. Don Hale (1998) SC 564.

Re Application by Anderson Agiru (08/10/01) SC671.

Application of John Mua Nilkare (15/04/97) SC536.

Avia Aihi v. The State [1981] PNGLR 81.

Tau Jim Anis & Ors. v. The State (25/05/00) SC642.

The State v. Irox Winston (Unreported judgment delivered on 13/03/03) N2347.

Goli Golu v. The State [1979] PNGLR 653.

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

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

The State v. Andrew Keake (Unreported judgment)N2079.

The State v. Ian Napoleon Setep (Unreported judgment)N1478.

The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65.

The State v. Godfrey Edwin Ahupa (Unreported judgment)N1789.

Ombusu –v- The State[1996] PNGLR 335.

The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, (a decision of Woods J. in Kimbe on 7th February 1997).

Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa –v- The State, Unreported Supreme Court Decision in SCRA 10 of 1997 and dated 4th May 2000,

The State v. Arua Maraga Hariki (Unreported judgment delivered on 03/02/03) N2332.

Tony Imunu Api v. The State (Unreported judgment delivered on 29/08/01) SC684.

The State v. Fredinand Naka Penge (Unreported judgment delivered on 24/05/02) N2244.

Counsels:

F. K. Popeu for the State

D. Kari for the Prisoner

25th March 2004

KANDAKASI J: On the 18th of this month, you were found guilty on two charges of wilfully murdering a mother and child namely Wupiano Kame Menapol and Francisca Kame Menapol on 19th July 2002 here in Vanimo.

Address on Sentence

I then asked you to address the Court on your sentence and you chose to leave that to your lawyer. Before making his submissions on your behalf, your lawyer informed the Court of your personal and family backgrounds. He then proceeded to make submissions on your behalf mainly arguing against the death penalty which is the prescribe maximum for wilful murder cases. He instead argued for the lesser penalty of life imprisonment. This argument acknowledges that the offences you committed in the particular circumstances in which you committed them is of the worse type of wilful murder.

The State agrees your case falls into the worse category of wilful murder cases. Accordingly, it argues for an imposition of the maximum prescribed penalty of death and not the lesser one of life imprisonment.

In the course of the parties’ submissions, the Court asked counsel whether they were agreeable to the Court asking for and receiving community input on the kind of sentence you should receive. This was in appreciation of the fact that criminal sentencing is a community responsibility. Both counsels were agreeable to the Court receiving an input from the community on the kind of sentence you should receive.

The Supreme Court in Public Prosecutor v. Don Hale,

(1998) SC 564.

1 emphasis the need for inputs from the community in relation to criminal sentencing in the context of a suspended sentence in these terms:

“…a further help to the court would be a community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The courts are bound under the philosophy of the constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered.”

(Emphasis supplied)

These principles, in my view, in a more practical way acknowledges and allows for an exercise at least in that limited way by the people themselves of their judicial power. The Constitution does acknowledge and affirms in s. 158(1) and elsewhere that the judicial power which the Courts exercise belongs to the people. The Supreme Court judicially acknowledged this in a number of cases, such as that of Re Application by Anderson Agiru

(08/10/01) SC671.

2 and Application of John Mua Nilkare

(15/04/97) SC536.

3 citing with approval Avia Aihi v. The State.

[1981] PNGLR 81.

4

In subsequent judgments of the Supreme Court, as in Tau Jim Anis & Ors. v. The State,

(25/05/00) SC642.

5 these principles have been cited with approval. Many other judgments of both the Supreme and the National Court have adopted and applied these principles. Some of these are my own judgments as in The State v. Irox Winston,

(13/03/03) N2347.

6 where I said:

“The Courts are charged with the judicial power of the people under our constitutional framework to appropriately deal with offenders on their behalf. The Courts therefore, have a constitutional duty to seriously take into account the peoples wishes in relation the kind of sentence an offender should receive in each case when they give consideration to the appropriate penalty to be imposed. Not only that, they should ensure at the same time that, the kind of sentence they arrive at is reflective of the people’s wish. This is in addition to taking into account all the other considerations a sentencing judge should take into account and then arrive at a sentence that is reflective of all of those considerations.”

In the present case, the community’s input is now before the Court. The Court will consider it, in the same breath as the other relevant factors for consideration before arriving at a sentence...