The State v Clarence Tema Mongi (2007) N3259

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 12 December 2007
• Citation: (2007) N3259
• Docket Number: CR 1649 of 2005
• Court: National Court
• Year: 2007
• Judgement Number: N3259

Full Title: CR 1649 of 2005; The State v Clarence Tema Mongi (2007) N3259

National Court: Sevua, J

Judgment Delivered: 12 December 2007

N3259

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1649 of 2005

THE STATE

v.

CLARENCE TEMA MONGI

Buka: Sevua, J

2006: 17 & 28 July

2007: 12 December

CRIMINAL LAW – Sentence – Wilful murder – Plea of guilty – Serious aggravated circumstances – Accused smoked one roll of marijuana – Victim aged 7 years – Accused observed victim collecting nuts – Accused followed and grabbed victim – Accused led victim to a cliff – Accused punched and concussed victim – Accused carried victim to another area – Accused tried to punch victim again but missed and hit a rock – Accused tried to punch victim again but missed and hit a rock – Accused then became incensed and twisted victim’s neck killing her instantly.

PENALTY – Wilful murder – Plea of guilty – Effect of drug – Whether accused knew what he was doing – Serious aggravated circumstances warranting maximum penalty – State called for death penalty – Whether death penalty should be imposed – Discretion of Court.

SENTENCE – Wilful murder – Plea of guilty – Victim very young – Whole life snapped out of her – Whether plea of guilty and other mitigating circumstances sufficient to enable Court to ignore maximum penalty – Circumstances of crime grave enough to warrant maximum penalty – Maximum sentence of death imposed.

Cases cited:

Papua New Guinea Cases:

Manu Kovi v. The State (2005), unreported, SC 836, 31 May 2005

The State v. Ben Simakot Simbu (No 2) (2004) N.2546, unreported, 25 March 2004

The State v. Rex Lialu [1988-89] PNGLR 449

Kesino Apo v. The State [1988] PNGLR 182

Mase v. The State [1991] PNGLR 88

The State v. Arua Maraga Hariki (2003), unreported, N2332, 3 February 2003

The State v. Kepak Langai (2003), unreported, N2463, 26th September 2003

The State v. Mark Poroli (2004), unreported, N2655, 25th August 2005

The State v. Sedoki Lota and Fred Abenko (2007), unreported, N3183, 1st October 2007

The State v. Jude Gena & 4 Ors (2004), unreported, N2649, 24th September 2004

The Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510

Steven Loke Ume & 2 Ors (2006), unreported, SC 836, 19th May 2006

Regina v. Peter Ivoro [1971-72] PNGLR 374

Tony Amuni Api v, The State (2001), unreported & unnumbered, (SCRA 16 of 2001), 29th August 2001

Overseas Cases:

Profitt v. Florida 428 US 249

Legislation Cited:

Constitution, ss 35, 36.

Criminal Code, ss. 19, 299, 539, 595.

Counsel:

F. Popeu, for State

P. Kaluwin, for Accused

12 December, 2007

1. SEVUA, J : On 17 July 2006, the accused, Clarence Tema Mongi of Lonahan village, Buka, pleaded guilty to a charge of wilful murder and sentence was reserved, due to the gravity of the crime.

2. The facts are that, on 15 July 2004, at Lonahan village, Buka, between 9:00 and 11:00 am, the deceased, Celina Kuhil, then aged 7 years had gone to the bush to collect galip nuts. At that time, the accused, who had consumed marijuana, came by and saw the deceased collecting nuts. He then grabbed her and pulled her towards a cliff. Near the cliff, the accused punched the deceased on her head resulting in a concussion. Whilst the victim was in that state, the accused carried her to another area and when the deceased regained consciousness, he punched her on her head again. As he was going to punch her again, he missed and punched a rock. He became incensed then twisted the deceased’s neck killing her instantly.

3. After the victim had died, the accused attempted to insert his penis into her vagina, however he could not penetrate her because she was too small. He then pushed his fingers into her vagina and anus and vagina to enlarge it. After doing that, the accused inserted his penis into the deceased’s anus and sodomized her. The accused later carried the deceased body to a small cave and hid the body in it. The body was recovered in the evening following a search.

4. The State alleged that the accused had intended to kill the deceased and therefore indicted him with wilful murder contrary to s.299 of the Criminal Code Act.

5. The accused pleaded guilty to the charge and was thereafter convicted of wilful murder after perusal of the Committal depositions. When his rights under s.593 was administered in allocutus, the accused said the following:

“I want to say sorry to the Court for what I have done and I
say sorry to the family of the deceased. I admit committing
this offence. This is my first time to appear before the
National Court and I humbly ask the Court for mercy. That
is all.”

6. From the personal antecedents of the prisoner, his counsel submitted that he is 23 years, single, and resided at Lonahan village. He is of the Catholic faith. His parents are alive and he is the seventh in a family of seven. He was a Grade 7 pupil at Lonahan Primary School in 1999, but did not complete that grade. He has a prior criminal conviction on a charge of stealing before the District Court in 2000 where he was fined K100.00.

7. Counsel referred to the maximum penalty of death, and submitted it is subject to s.19 of the Code.

8. On sentence, counsel submitted the following and urged the Court to take them into account –

· Remorse by the prisoner

· Apologised to the Court

· Apologised to the family of the deceased.

· Paid compensation to the deceased’s family; and

· Court should give little weight to the prisoner’s prior conviction as it was not a violent offence.

9. Reference was made to Manu Kovi v. The State

1 (2005), unreported, SC 789, 31st May 2005

1; where the Supreme Court set out various sentencing tariffs in homicide cases. Counsel referred to page 15 in that judgment where the Supreme Court said that the death penalty should be reserved for the worst case of wilful murder. Mr. Kaluwin also submitted that a ‘worst case’ would depend on its own circumstances. He referred to page 5 of that judgment where the Court discussed mitigating factors and submitted that the Court should distinguish special mitigating factors from ordinary mitigating factors.

10. Furthermore, Mr. Kaluwin submitted that the earlier the plea, the more weight the Court should attach to the plea. He relied on the case John Kalabus, but did not provide the citation.

11. Counsel urged the Court to take note of the evidence of Lilian Solas and submitted that without the admission in the Confessional Statement, there is no evidence to connect the prisoner to the crime.

12. Counsel further referred to the issue of compensation payment in Kovi’s case where traditional forms of compensation was distinguished from the modern concept of compensation and reference to the letter which was tendered in Court in respect of the payment of compensation.

13. It was also submitted that the guidelines suggested by the Supreme Court in Manu Kovi (supra) be considered in this case. Counsel asked the Court to take into account the matters he has submitted and especially the mitigating factors he has referred to. It was his submission that a custodial sentence would be more appropriate than the death penalty. He submitted that the death penalty is not appropriate in this case. A Pre-Sentence Report was requested and an order made for it to be produced to the Court.

14. Counsel for the State, Mr. Popeu briefly submitted that the maximum penalty is death. The Court was urged to consider that the deceased was a 7 year old girl. Counsel submitted that the prisoner has not advanced any reason for causing the death of the victim. The prisoner was under the influence of marijuana, however, it was submitted that, the effect of drug in this case was self induced intoxication which makes this case a very, very serious case.

15. Mr. Popeu referred to a similar case in Vanimo; The State v. Ben Simakot Simbu

2 (2004), unreported, N2546, 25th March 2006.

2; which involved a small girl whom the prisoner killed and the prisoner did not give any reasons for killing the girl. Counsel submitted that, there is no special mitigating factor warranting a lesser penalty than the prescribed maximum penalty. It was submitted therefore that the maximum penalty should be imposed.

16. In reply, Mr. Kaluwin for the prisoner submitted that the special mitigating factors as in Manu Kovi have been pointed out. Counsel submitted that whether or not there were reasons, the result did not matter. The Court was asked to give credit to the prisoner for his admission in the Confessional Statement for without that a conviction would not be secured.

17. In relation to the Pre-Sentence Report, Mrs. Cicely Kekun, the Provincial Welfare Officer was in Court and she assured the Court, it would take 4 days to compile the report. The case was therefore adjourned to 25 July 2006 for the report to be provided.

18. Up to 17 July 2006, Mr. Kaluwin submitted that the prisoner had been in custody for 2 years 2 days.

19. On 25 July 2006, the Pre-Sentence Report was received and the matter adjourned to 28 July 2006. On 28 July, the Court explained to the prisoner the essence of both counsels’ submissions and informed the prisoner that sentence would be reserved and both counsels will be advised.

20. I have had the liberty of perusing the Pre-Sentence Report and thank Mrs. Kekun for her assistance to the Court. I have noted the views of the parents of the...