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

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2546
• Date: 26 March 2004
• Court: National Court
• Year: 2004

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] PNGLR 331, 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] PNGLR 53, Tony Imunu Api v The State (2001) SC684, The State v Fredinand Naka Penge (2002) N2244 referred to

Decision on Sentence

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Kandakasi J: On 18 March 2004, you were found guilty on two charges of wilfully murdering a mother and child namely Wupiano Kame Menapol and Francisca Kame Menapol on 19 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 background. He then proceeded to make submissions on your behalf mainly arguing against the death penalty which is the prescribed 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 are 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 counsel 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) SC564 emphasised 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 added.)

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 s158(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 (2001) SC671 and Application by John Mua Nilkare [1998] PNGLR 472 citing with approval Avia Aihi v The State (No 1) [1981] PNGLR 81.

In subsequent judgments of the Supreme Court, as in Tau Jim Anis v The State (2000) SC642, 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 [2003] PNGLR 331, 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 for you. For now however, I turn to the relevant facts.

The Facts

The facts are fully set out in the judgment on your verdict. However, for the purposes of sentencing, I note that on the day of the offence, you went to the deceased house. There you found the deceased woman sitting with her small two years old child and you asked her to give you a live chicken on credit. She refused the first time you asked and so you repeated your request two more times. On the third, you got angry and grabbed the woman.

The woman struggled with you and you eventually overpowered her and threw her on the ground. As she was on the ground, you put your shorts and pants down and then proceeded to have forceful sexual intercourse with her. After you finished your forced sexual intercourse with her, you picked up an old but still strong piece of iron that was there and hit the woman across her head as she lay on the ground, with intent to kill her. She died instantly. You then used the same piece of iron and proceeded to hit the woman's child on the head, who was by then crying and watching helplessly. The child died instantly too. When you did that, you also intended to kill the child and you achieved it.

After having killed the woman and her child, you fled from the scene and the township of Vanimo to avoid arrest and prosecution. This was on the same day of the rape and double murders. You left for Aitape and your home village by motor vehicle and then by foot. Fortunately, police were able to apprehend you at Aitape when you got there and had you brought back, charged...