The State v Francis Waka Sapu (2012) N4533

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 20 February 2012
• Citation: (2012) N4533
• Docket Number: CR No. 617 of 1999
• Court: National Court
• Year: 2012
• Judgement Number: N4533

Full Title: CR No. 617 of 1999; The State v Francis Waka Sapu (2012) N4533

National Court: Kawi, J

Judgment Delivered: 20 February 2012

N4533

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 617 OF 1999

THE STATE

V

FRANCIS WAKA SAPU

Kimbe : Kawi, J

2011 : 15 December

2012 : 20 February

CRIMINAL LAW Indictable offence-Decision on sentence- wilful murder-prisoner actively participated in the brutal murder and rape of old woman- it was a payback attack - Victim a harmless old innocent woman- Killing was a senseless, and cold blooded spite filled murder - Killing described as one of the worst killing in the Talasea area of West New Britain Province - Sentencing principles in homicide cases considered –criminal liability of prisoner rose by virtue of prisoner’s active participation in killing of deceased- criminal responsibility arose by virtue of section 7 Criminal Code - Co-offenders sentenced to imprisonment for life by Supreme Court- Principle of parity of sentencing requires sentence of life imprisonment

Facts:

The accused was indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code. His criminal responsibility arose by virtue of section 7 of the Criminal Code. The State proved beyond reasonable doubt to show that on the day in question a group of men in the Talasea area had set out to a nearby village to avenge the death of a young man from their village. They left behind a trail of destruction as they set out to hunt for the murderer and his relatives. They arrived at the village of the deceased and caused a lot of destruction. Houses were burnt down and domesticated animals were slaughtered mercilessly. Fruit and other economic trees were cut down with the inhabitants fleeing to safety. The deceased was among the persons who were fleeing to safety in all directions when she was stopped dead in her tracks by the prisoner who dragged her to a spot where the retaliating warriors had congregated. The deceased was dragged to that spot by the prisoner with the help of a co-accused, now serving life sentence in jail. There the warriors in a revengeful attack assaulted her using sticks and bush knives. She was tortured and other forms of torture and inhuman acts were perpetrated upon her. She was than brutally raped in broad day light. She was then bludgeoned to die a very slow and painful death full of excruciating pain. Her skull was clubbed open by the warriors who then caused the brain matter to spill and spread everywhere. The prisoner’s three co-accused were initially sentenced to death. But on appeal the Supreme Court reduced their death penalty sentence to sentences for life. On the prisoner’s sentence:

Held:

(1) The parity principle requires that as between co-offenders there should not be a marked disparity in their sentences which gives rise to a justifiable sense of grievance. Accordingly to avoid any feelings of grievance, a sentence of life imprisonment is imposed upon the prisoner.

(2) It is the gravity of the offence, which will override any considerations based on expression of remorse and contrition.

(3) This was a cold blooded spiteful barbaric group attack on an innocent harmless women. As such it was very difficult to identify any individual perpetrator and the specific role such person played in the brutal rape and senseless murder of the deceased. Notwithstanding this, the gravity of the crime itself warrants the same sentence of life imprisonment to be imposed upon the prisoner.

(3) There are various objectives of sentencing and they include rehabilitation/reformation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of barbaric and heinous crimes.

Cases cited:

Papua New Guinea Cases

Peter Allan Utieng –v- The State SCR 15 of 2000

Steven Loke Ume, Greg Wava, and Charles Patrick Kaona -v- The State [2006] SC836

Goli Golu –v– The State [1979] PNGLR 563

The State –v- Tom Keroi Girua & ors [2002] N2312

MacPherson v The Queen [2002] WASCA 287

John Elipa Kalabus –v- The State [1988] PNGLR 193

William Ukukul Gimble v The State [1988-89] PNGLR 271

Winugini Urugitaru v The Queen [1974] PNGLR 283; 653

Andrew Uramani & Ors v The State [1996] PNGLR 287

The State –v–Laura (No. 2) [1988-1989] PNGLR 98,

Lawrence Simbe –v– The State [1994] PNGLR 33

The State v Tony Pandau Hahuahoru [No.1] [2002] N2185

The State –v- Naetemo Wanu [1977] PNGLR 152,

Overseas Cases

Davies –v- DPP [1954] 2 WLR 343

Mario Postiglione v The Queen [1997]189 CLR 295

R-v- Ball (1951) 35 Cr APP R 164 at page 164

R-v- Richards (1955) 39 Crim App R 191

Counsel:

Mr. L. Rangan, for the State

Mr. P. Mokae, for the Prisoner

20 February, 2012

DECISION ON SENTENCE

1. KAWI, J: Francis Waka Sapu was charged with one count of wilful murder of one Agnes Banovo on the 3rd December 1995 at Pangalu village, Talasea, in the West New Britain Province contrary to section 299 (1) of the Criminal Code. On arraignment the accused pleaded not guilty to the charge of wilful murder and the trial commenced with the prosecution calling a number of witnesses to give evidence. He was subsequently found guilty and convicted for wilful murder under section 299(1). Here is my judgement on his sentence.

SENTENCING PROCESS

2. In computing an appropriate sentence, it must be noted from the outset that sentencing is not an exact mathematical science where fixed formulas are applied to find fixed solutions to problems. Rather sentencing is a discretionary process guided by several legal principles to achieve one or more objectives of sentencing. To arrive at these objectives, some of the sentencing principles I will follow here are the following:

a) I will consider the antecedent report of the prisoner.

b) The prisoner’s statement made during the administration of the allocutus.

c) I will take into account the mitigating factors and aggravating factors operating for and against the accused.

d) The submissions of both the defence and prosecution counsels are taken into account.

e) I will also take into account sentencing guidelines and sentencing tariffs in homicide cases especially decisions of the National and Supreme Courts.

f) Those guidelines are then applied to this case and a head sentence is fixed.

g) Consideration is then given to whether part or the whole head sentence should be suspended or not.

CLASSIFICATION OF YOUR CASE

3. I will now consider the issue of whether this case can be classified as falling into the category of worst cases. During the trial of this case the facts and evidence revealed that the deceased Agnes Banovo was a defenceless and innocent woman who was fleeing from the scene of a payback attack perpetrated by warriors intent on avenging the death of Francis Reu. As the deceased was fleeing from the warriors, she was stopped by the prisoner and with the assistance of another warrior, Greg Wava (now serving a term of life sentence for the brutal rape and murder of Agnes Banovo), dragged the deceased to the spot where she was brutally raped and viciously and senselessly murdered. The deceased was assaulted by the warriors using their bare fists, as well as sticks, and knives. She was like a sheep amongst a hungry pack of ferocious wolves who were devouring every flesh and bone of the deceased. In the midst of all these gruesome attacks, the deceased was brutally raped and the torture continued. Eventually she was murdered with her skull bludgeoned and opened up. The brain matter was spilled out everywhere. In such circumstances I classify this case as one of the worst payback killings ever committed in the Talasea area of the West New Britain Province. This killing is therefore classified into the category of worst cases and the prisoner who took an active part in the killing, had a blatant disregard for the sanctity and sacredness of human life and is therefore branded as a worst offender.

4. In my view whilst this is a one off killing, the method employed to kill the deceased can be best described as ferocious, barbaric, senseless and cold blooded. A dangerous lethal weapon, was used to attack a defenseless and harmless innocent old woman shows clearly that you cared little for the sanctity and sacredness of human life. During this ordeal she was crying and pleading to her attackers to kill her quickly so she could not experience the excruciating pains. Despite her pleas for mercy she was made to die a slow painful death. To speed up her death her skull was bludgeoned with a solid object, most probably with a piece of wood and her brain matter spilled out and spread all over the place. For this reason alone, while you may not have played an active role in this rape and murder, I will still classify you as a person who is dangerous and high risk person to your community. You are a...