The State v Bernard Hagei (2005) N2913

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 21 September 2005
• Citation: (2005) N2913
• Docket Number: CR No 679 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2913

Full Title: CR No 679 of 2004; The State v Bernard Hagei (2005) N2913

National Court: Lenalia J

Judgment Delivered: 21 September 2005

N2913

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.679 OF 2004

THE STATE

-V-

BERNARD HAGEI

BUKA: LENALIA, J.

2005: 9th & 21st September

Criminal Law – Willful Murder – Plea – Sentence – Criminal Code s. 229,

(Ch. No. 262)

Criminal Law – Practice & Procedure – Sentence – Willful murder after

victim had been raped – Killing with intent to conceal offence of rape – Victim allured and tricked to be taken to her aunt – Offence of rape not charged – Murder committed after victim was raped – Offence amongst the “worst category” – Victim raped after which she fled – Chased and brutally murdered.

Criminal Law – Willful Murder – Sentence – Principles of – Mitigating and

Aggravating circumstances – Offence committed for purposes of concealing another serious crime – Circumstance of aggravation – Four fatal blows to the head causing instant death – Piece of wood used to hit back of the head with intent to kill victim – Maximum penalty not appropriate – Death penalty ought not to be imposed – Criminal Code s.229.

The following cases are cited in the judgment

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

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

Hure Hane – v – The State [1984] PNGLR.105

Steven Loke Ume & 2 Others – v – The State (2000) SCRA 10 of 1997

The State – v – Arua Maraga Hariki (2003) N2332

The State – v – Kepak Langa (2003) CR No.300 of 2003

The State – v – Ben Simakot Simbu CR.No. 1413 of 2002

Manu Kovi – v – The State (2005) SC 789

The State – v – Mark Poroli (2004) N 2655

F. Popeu, for the State

L. Siminji, for the Accused

21st September 2005

LENALIA, J: On arraignment, the prisoner pleaded guilty to the crime of willful murder contrary to Section 229 of the Criminal Code.

The admitted facts are these. On Saturday the 1st of November 2003, the victim, Georgina Reina Giobun was sent by her parents from Malasang village to her aunt Mrs. Hogomo Turiana at Ieta village on the out-skirts of the Kieta town and the airstrip here in Buka. The victim was sent to get some food from her aunt since her parents did not have any food for that day. She was given instructions by her mother that if she arrived at Ieta and her aunt and family members were not there, she was to wait in the village until they came home.

The victim came to Ieta village and sat out side the steps to Trevor Turiana’s house. While she was sitting there, the accused came to her and she asked the accused if the accused knew where her aunt and her family were or where they had gone to. The accused replied that, her auntie and the family had gone out to their gardens. The accused then offered to lead the victim to the gardens where her aunt and her aunt’s family had gone to. In fact, that was the first lie on the part of the accused. With that understanding, the victim agreed to go with the accused with the intention to go to find her aunt in the gardens.

According to the record of interview, the prisoner said, instead of leading the victim to her auntie’s garden, he led her through another track to the scene where he forcefully raped her. During the time, the accused was having sexual intercourse with the victim, the accused told the victim that, after sex, she should not tell anyone about the rape. However, when the pair finished having sex, the victim stood up and started to run away naked while only holding on to her trousers. She left her bra, the pants and her top in the hands of the accused.

She ran a distance away from the accused because the accused was zipping-up his trousers and while she was running, the victim said something to the effect that, she was going to report to her relatives and her parents what the accused had done to her. Having heard what the victim said, the accused ran after the victim and having caught up with her he then administered a hard punch to the back of her head causing her to fall over with her face and front side of her body facing the ground.

Whilst the victim was lying on the ground, the accused picked up a piece of stick and used it to club the victim by administering four (4) fatal blows to the back of the victim’s head. The victim died instantly.

Having killed the victim, the accused noticed that, she was dead; he then pulled the deceased by dragging her body along the ground to a nearby rotten log where he hid the body underneath it and thereafter covered it with dead leaves and dirt. The accused then left to the village.

That same afternoon, Mr. and Mrs. Hillary Nima and Sabina Nima went to their gardens to cut firewood and to check Hillary’s pigs’ trap. They found some of their friends who were already digging kaukau in their respective gardens, and the two of them branched out. Hillary took time to talk to their friends then went on to check his trap while Sabina went further to collect firewood. As she was going through the bushes, she got attracted by fresh signs of human foot-prints left on the grass and dead leaves.

Thinking it was a pig going toward her husband’s pig trap, she followed the prints and then she realized they were human foot-prints. As she was looking around expecting to see someone, she found the body of the late Reina Georgina Giobun. She then called out to her husband and the others in the garden to see the body. Police was called to the scene and the investigation commenced immediately and the accused was taken in for questioning.

On the physical external medical examination, the doctor noted that the deceased body was found to be stiff and the nose, mouth and the vagina were covered with blow flies droppings. Blood clots could be seen in the vagina with tears on both lateral walls. The doctor concluded:

“The obvious cause of death was a communicated skull fracture at the occipital region of the skull. This appears to be a bag of bones. The head was freely mobile conforming to a cervical spine fracture dislocation at the base of the skull”

On addresses, when the accused was asked by the Court if he wanted to say anything before his lawyer address the Court on sentence, the accused said, he is very sorry to the Court, the victim, her parents and their relatives. He also said that, when he was already in the hands of the police, he was forcefully taken away by the relatives of the victim to the village where he was severely beaten up and speared. On the invitation of Mr.Siminji of counsel for the accused, the prisoner removed his shirt and showed to the Court scars that he sustained when he was bashed up.

He said he was also cut with axes and knives. There is a scar on the back of his body which the accused said the spear went through right to the front on the chest. There was however no medical evidence presented to Court on his injuries.

Mitigating factors raised in favour of the accused by the defence counsel are that, first, though they agree the case of their client falls into one of the worst category of offences, the Court ought to consider the fact that the prisoner was severely beaten in the eyes of the police at the police station then was taken out of the police custody then thereafter he was taken to the village where he was cut with axes and bush/knives by the relatives of the victim. Certainly these are factors the Court will consider on sentence.

Mr. Siminji highlighted on how the spear was driven through the body of the accused from his back to the chest just about below mid the right breast. In fact Mr. Siminji confirmed what the accused said that, after the accused was speared, he died and his body was wrapped up in a plastic and was place in the hospital morgue. But when the body was about to be put away into the morgue, the accused raised up adding that it was truly a Divine intervention for the accused to have been raised and without the spear piercing the prisoner’s heart.

Other mitigations include the accused guilty plea to this very serious charge. Certainly the accused guilty plea to a very serious charge like the one under consideration could be mitigation but weighing the serious circumstances under which this crime was committed any mitigating factors raised in favour of the prisoner would fade very significantly.

I agree however with counsel that, the State’s case would have been circumstantial had the prisoner chose to enter a not guilty plea. But, I don’t accept counsel’s submission that the prisoner’s excessive indulgence in alcohol should be taken as a special extenuating circumstance. I will return to this latter.

Mr. Popeu of counsel for the State made a brief reply saying that, the accused on the morning of the date in issue had gone around with the intention to commit rape upon any women who might be vulnerable that morning. The facts show that the accused attempted to rape another woman before he committed this crime. That is not however a consideration before this Court. Counsel submitted that, especial aggravations include raping the victim then to cover the rape, the prisoner killed the victim. He submitted the Court must consider imposing the maximum penalty provided for the section charged.

The Law

The prescribed penalty for the crime of willful murder pursuant to s.299 of the Criminal Code is death. Depending on the factual circumstances of a case under consideration, the...