CR. No. 802 of 2011; The State v Ladimat Kilala, Diman Nanat, Yang Nanat & Batil Ragia (No.3) (2012) N5080

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2012) N5080
• Date: 13 December 2012
• Year: 2012

Full Title: CR. No. 802 of 2011; The State v Ladimat Kilala, Diman Nanat, Yang Nanat & Batil Ragia (No.3) (2012) N5080

National Court: Lenalia, J

Judgment Delivered: 13 December 2012

CRIMINAL LAW—Charge of willful murder—Sentence—Factor for consideration—Criminal Code s299.

CRIMINAL LAW—Charge of willful murder—Sentence after finding of guilty—

Consideration in favour and against the four accused—Killing not worst type case—It does not warrant imposition of death penalty—A term of years appropriate.

Cases cited

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; Lawrence Simbe v The State [1994] PNGLR 38; Steven Loke Ume v The State (2006) SC836; Manu Kovi v The State (2005) SC789; Joseph Enn v The State (2004) SC738; Max Java v The State (2002) SC701; The State v Joseph Ulakua (2002) N2240; Aloises Peter Irobo Kovei v The State (2001) SC676; The State v Kevin Wakore (2007) N3222; The State v Isaac Nickson & 2 Others (14.9.07) Cr.No.1076 of 2005; The State v David Yakuye Daniel (No 2) (2005) N2890; Joseph Nimagi v The State (2004) SC741; The State v Charlie Langu (No 2) (2004) N2652; The State v Kiri Kirihau Harisu (2006) N3168; The State v Gregory Kiapkot (2011) N4381; The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010; The State v Seth Ujan Talil (2010) N4159

1. LENALIA, J: The four accused were indicted with one count of willful murder contrary to s299 of the Criminal Code. They pleaded not guilty on the grounds that they did not intend to kill the victim Damia Kilala. On 16th of last October 2012, the court found the four accused guilty on the charge of wilful murder. The maximum penalty for the crime of wilful murder is death. Section 229(1)(2) states:

“299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

2. On 16th October 2012, this court found them all guilty on the charge of wilful murder. After having heard the four accused on their allocutus and counsels’ addresses on sentence, all that remains is for the court to decide what penalty should be appropriate to impose on the four accused.

Addresses on Allocutus.

LADIMAT KILALA.

3. On the address on his last say, the accused did not show any remorse and only said, he does not know anything about the trouble he is accused of. To this court I take it that, the prisoner is saying he is not guilty of the charge that he was found guilty of.

DIMAN NANAT.

4. In case of prisoner Diman Nanat, he said, he respects the court’s decision but he is innocent. He expressed no remorse.

YANG NANAT.

5. On his allocutus, the prisoner said, he has been found guilty and added he does not know about the trouble they are in court for.

BASIL RANGIA.

6. This prisoner mentioned similar comments as the others. He said, he does not know about the trouble.

Defence Address on Sentence.

7. Mr. Kaluwin of counsel for the four accused asked the court to consider the following mitigation:

• All the four accused are first time offenders.

• The offence they committed is related to the relative of the four accused.

Counsel submitted that, this case is not the worst type case to warrant imposition of the death penalty. Counsel submitted that this case would fall into category 1 or 2 in the tariff of sentences suggested in the recent case of Manu Kovi-v-The State (2005) SC789.

Prosecution’s reply and address on Sentence.

8. Counsel representing the State, Mr. Rangan replied by saying that, the killing on this case was willed and the court should consider protection on the sanctity of life to save guard the community’s interest. He submitted that, a sentence in the vicinity of category 2 suggested in the Manu Kovi’s case (supra) be considered.

Application of Law.

9. The maximum penalty for the offence of wilful murder is death. The Criminal Code does not define how such penalty should be carried out nor does it authorize who can carry or effect such penalty. This is despite the fact that the life imprisonment was amended into the death penalty in 1991, nothing has been done by our legislators to implement such penalty. In any event s597 of the Criminal Code states that, where the death penalty is considered, an accused can be sentenced to be hanged by his or her neck until he or she dies. The Head of State will have to appoint a place and time for the execution of such sentence.

10. All four accused are charged with the highest homicide case. The maximum penalty for wilful murder is death and the maximum penalty for murder and manslaughter is life imprisonment. On the instant case, the four prisoners can be sentenced to death. What remains for the court to do is consider an appropriate penalty that will befit the crime charged.

11. On wilful murder cases in Hure Hane-v-The State [1984] PNGLR 105, Bredmeyer, J; set out eight (8) categories of serious wilful murder which can be categorized as worst type killings. They include:

• a wilful murder committed in the course of committing thefts, robbery, break and...