The State v Tumu Luna (2002) N2205

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 20 May 2002
• Citation: (2002) N2205
• Court: National Court
• Year: 2002
• Judgement Number: N2205

Full Title: The State v Tumu Luna (2002) N2205

National Court: Jalina J

Judgment Delivered: 20 May 2002

N2205

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 933 OF 2001

THE STATE

-v-

TUMU LUNA

Wabag : Jalina, J.

8th & 20th May 2002

Criminal Law – Particular offences – Wilful murder – Sentence – Deceased shot with a gun – Conviction following a trial – Whether this wilful murder among worst category of wilful murders – This wilful murder not amongst worst category of wilful murders – Maximum penalty of death not appropriate – Life imprisonment appropriate – Criminal Code s.299 (2).

Papua New Guinea cases cited:

The State –v- Ombusu, Unreported National Court Judgment, by Doherty J. dated 17th February 1995.

Ombusu –v- The State[1996] PNGLR 335.

The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, Unreported Decision of Woods J. dated 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.

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

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

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

The State –v- John Wayake Komane and others [1992] PNGLR 524.

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

The State –v- Eliesa Kopeia Madiroto [1997] Unreported National Court judgment No. N1554 dated 28th March 1997.

Counsel:

S. Kesno for the State

P. N’dranoh for the Prisoner

20th May 2002

JALINA, J.: This prisoner was convicted of wilful murder following a trial. His defence that he mistook the deceased for a pig when he shot him with a gun was found to have been successfully negatived by the State. The rest of the facts appear in the evidence of witnesses whose statements were tendered by consent or who gave oral evidence during his trial and as such I do not consider it necessary to repeat them here. He now comes before me for sentence.

The maximum penalty under s. 299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but by Act No: 25 of 1991 Parliament amended subsection (2) and replaced life imprisonment with the death penalty. Since the amendment by Parliament, the National Court in Papua New Guinea has imposed the death penalty in two cases. The first case was The State –v- Ombusu, Unreported National Court Judgment, dated 17th February 1995 in which Doherty J. imposed the death penalty on a Popondetta man for wilful murder. On appeal by the prisoner to the Supreme Court, a five-men bench comprising, Amet CJ., Kapi DCJ. and Los, Injia and Sawong JJ. quashed the National Court Decision on technical grounds (see Ombusu –v- The State[1996] PNGLR 335, The other case was The State –v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa, which was the decision of Woods J. in Kimbe on 7th February 1997. The appellants appealed to the Supreme Court [SCRA 10 of 1997] on 11th February 1997 against both conviction and sentence of death. After grant of legal aid however, the Public Solicitor filed a supplementary Notice of Appeal on 23rd July, 1997 in which he appealed against conviction only.

The Supreme Court comprising Amet CJ., Kapi DCJ. and Sevua J. dismissed the appeal against conviction on 4th May, 2000 (see 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), so the death penalty remains undisturbed. It would be interesting to see what the prisoners do next against such a penalty or the State does next to give effect to the intention of Parliament in prescribing the death penalty for wilful murder. So judges should not feel reluctant to impose the death penalty in an appropriate case.

At the time when life imprisonment was the maximum penalty for wilful murder the Supreme Court held in Goli Golu –v- The State [1979] PNGLR 653 that:

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

In Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 the Supreme Court held that:

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

Two years later the Supreme Court held in Ure Hane –v- The State [1984] PNGLR 105 that:

“When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so for as the law allows, categories those “worst type” cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offenders.”

In his submission in mitigation of sentence, Mr. N’dranoh has referred me to a number of cases, which dealt with principles applicable when considering whether or not the maximum penalty should be imposed. Most of the cases he referred to have already been cited by me above except for the case of The State –v- John Wayake Komane and others [1992] PNGLR 524 which I have not cited above. That was a wilful murder case which involved the killing of two young students of Sonoma Adventist College outside Rabaul with a shotgun at point blank range where I sentenced the principal offender John Wayake Komane to 20 years imprisonment instead of death as I did not consider it to be among the worst wilful murders. The other case he referred me to was The State –v- Tau Ted Lahui & 2 Ors [1992] PNGLR 325 but it has no relevance to the case before me, as the charge in that case was not wilful murder but murder.

Mr. N’dranoh has also referred me to about eight categories of wilful murders, which Bredmeyer J. listed as falling among the worst categories of wilful murders in Ure Hane –v- The State (supra) at p. 107-109. They include:

(1) Wilful murder done in the course of committing a theft, a robbery, a break and enter or a rape.

(2) A wilful murder of a policemen or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

(4) A wilful murder of a person in police or court custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(7) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

(8) A wilful murder of the Governor-General, the Prime Minister, the Leader of the Opposition, the Speaker of National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.P’s.

He has submitted that the wilful murder in the present case does not fall under any of the above categories and as such it is not among the worst wilful murder cases so as to justify the imposition of the maximum penalty of death. He further submitted that the prisoner’s expression of remorse, his lack of prior convictions, payment of compensation in the form of 36 pigs and K1,753.00 in cash and that there would be no one to care for his 5 children that the maximum penalty be not imposed.

With regard to Mr. N’dranoh’s submission based on the personal antecedents of the prisoner, I am of the view that it does not carry much weight in the face of a very serious offence such as wilful murder, particularly in this case where there was no explanation from the prisoner during trial or during the allocutus after his conviction as to why he shot the deceased.

Mr. Kesno for the State has conceded that this particular wilful murder does not fall under any of the categories of wilful murders listed by Bredmeyer J. in Ure Hane’s case. He has however, submitted relying on Sevua J.’s remarks in The State –v- Eliesa Kopeia Madiroto [1997] Unreported National Court judgment No. N1554 dated 28th March 1997 in Alotau, that the principles enunciated in cases such as Goli Golu, Avia Aihi (No. 3) and Ure Hane were formulated some 18 to 20 years ago when the maximum penalty was life imprisonment. Consequently, I should consider this case as one of those cases referred to by Sevua J. when sentencing the prisoner who pleaded guilty to the wilful murder of an old woman in a most tragic manner. In that case the prisoner dragged the deceased out of her house in her garden, burnt the house down, belted her, pulled her down to the creek and threw her onto the stones and then bumped her forehead...