The State v Tumu Luna (2002) N2205

• Jurisdiction: Papua New Guinea
• Citation: (2002) N2205
• Date: 20 May 2002
• Court: National Court
• Year: 2002

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

National Court: Jalina J

Judgment Delivered: 20 May 2002

1 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 s299(2).

2 The State v Charles Bougapa Ombusu (Unreported and Unnumbered National Court judgment of Doherty J dated 17 February 1995), 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), 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 Waiyhake Komane John [1992] PNGLR 524, The State v Yapes Paege and Relya Tanda [1994] PNGLR 65 and The State v Eliesa Kopeia Madiroto [1997] PNGLR 95 referred to

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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 s299(2) of the Criminal Code 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 Charles Bougapa Ombusu (Unreported and Unnumbered National Court judgment of Doherty J dated 17 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–man bench comprising, Amet CJ, Kapi DCJ and Los J, Injia J and Sawong J quashed the National Court Decision on technical grounds (see Charles Bougapa Ombusu v The State (No 1) [1996] PNGLR 335, The other case was The State v Steven Loke Ume, Charles Patrick Kaona and Greg Wawa Kavoa (Unnumbered and Unreported Decision of Woods J dated 7 February 1997), which was the decision of Woods J in Kimbe on 7 February 1997. The appellants appealed to the Supreme Court [SCRA 10 of 1997] on 11 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 23 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 4 May, 2000 (see 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), 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 Waiyhake Komane John [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 [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...