CR 1442 OF 2010; The State v Justus T. Kerimiba (2012) N5173

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 28 November 2012
• Court: National Court
• Citation: (2012) N5173
• Year: 2012
• Judgement Number: N5173

Full Title: CR 1442 OF 2010; The State v Justus T. Kerimiba (2012) N5173

National Court: Toliken, AJ

Judgment Delivered: 28 November 2012

N5173

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1442 OF 2010

THE STATE

V

JUSTUS T. KERIMIBA

Popondetta: Toliken, AJ

2012: 1st October

28th November

CRIMINAL LAW – Sentence – Willful murder – Prisoner decapitated deceased with a single knife blow to neck – Unprovoked and unexplained killing - Plea of guilty – Mitigating and aggravating factors considered – Aggravating factors out-weigh mitigating factors – Sentencing tariffs considered - Sentence of 30 years imposed - Criminal Code Ch. 262, s 299 .

Cases Cited:

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

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

The State –v- Ben Simakot Simbu (2004) N2546

Manu Kovi v The State (2005) SC 789

Steven Loke Ume, Charles Kaona and Greg Kavoa v The State (2006) SC836

The State-v-Sedoki Lota and ANOR (2007) N3183

Thress Kumbamong v. The State (2008) SC 1017

The State –v- Mamanane Guri (No.2) (2009) N3771

The State –v- Isak Wapsi (2009) N3695

The State –v- Peter Wirundi (2010) N3994

The State-v- Dilu Kimam (2011) N4323

Counsel:

D. Kuvi, for the State

L. Mamu, for the Prisoner

JUDGMENT ON SENTENCE

28th November, 2012

1. TOLIKEN AJ: Justus Kerimba, on the 18th of October 2012, the State indicted you for one count of willful murder. The charge alleged that:

“Justus Kerimba of Binduta Village, Popondetta, Oro Province stands charged, that he on 2nd day of November 2009, at Binduta Village, Popondetta, Oro Province in Papua New Guinea, willfully murdered one ERIC ARENIAS.”

2. This is an offence under S.229 of the Criminal Code Act.

FACTS

3. The brief facts are as follows:

“On 2nd November 2009, between 8.00 a.m. – 9.00 a.m., you were at your home village at Binduta, Popondetta, Oro Province. You went to the deceased’s house where you picked up a piece of firewood and walked on the deceased’s cocoa block where he was working. You met the deceased at the cocoa block. You greeted the deceased and the two of you exchanged pleasantries. The deceased stopped working and you two conversed for a while.

The deceased then wanted to light his smoke so he put his grass knife down. And as he was lighting his smoke, you immediately picked up the grass knife and landed one single blow to his neck with the grass knife, completely severing it from the body. The deceased died immediately. You then got the deceased’s head and hid it on top of a hybrid coconut tree. You were later arrested and charged for this offence.

4. The State alleged that when you chopped off the deceased’s neck, you had intended to cause his death.

5. You pleaded guilty to the charge. I entered a provisional guilty plea on your behalf and only confirmed it after I was satisfied from the committal depositions that the evidence supported your plea. I then convicted you.

ANTECEDENTS

6. You are 35 years old. You come from Binduta Village, Popondetta, Oro Province where you have always resided. You are not married and were baptized into the Anglican faith. You have no prior convictions.

ALLOCUTUS

7. On allocutus this is what you told the Court:

“I don’t have anything to say. I have committed the offence. I am now in Court and the Court will deal with me”.

SUBMISSIONS

Defense Counsel

8. You lawyer submitted on your behalf that the maximum penalty for willful murder is death. However, he said that this is reserved for the worst category of offences.

9. He referred the Court to the case of Manu Kovi v The State (2005) SC 789 which set sentencing guidelines and tariffs for homicide offences. Counsel submitted that your case falls within Category 2 of the Manu Kovi tariffs, attracting a sentence between 20 -30 years.

10. Counsel conceded the following aggravating factors against you. You used a dangerous weapon and had a very strong desire to kill. A life had also been lost. He, however, also submitted that there are factors operating in your favour. These are; you pleaded guilty to the charge, are a first time offender, illiterate and had shown remorse. He then left the sentence for Court to determine in accordance with Manu Kovi guidelines.

The State

11. Counsel for the State acknowledged your lawyer’s submissions on the maximum penalty and that the imposition of the maximum sentence is reserved for worst offences. (Goli Golu –v- The State [1979] PNGLR 653; Avia Aihi (No. 3) [1982] PNGLR 92. However, the Court is vested with overriding discretion under S.19 - Criminal Code Act Ch.2626, so he submitted.

12. The State made a very strong submission on sentence citing strong aggravating factors against you. These are :

· The use of a dangerous weapon

· The deceased was harmless, innocent and defenseless

· A life was lost which can never be restored with any amount of compensation or expression of remorse.

· The offence is prevalent in the country with an increase of homicides recently in Oro as evident from reported cases

· This was heinous crime – death was brutal and cold blooded

· There was a strong desire to kill as evidenced from decapitation of the deceased.

13. Counsel also acknowledged sentencing guidelines set by Manu Kovi (supra) but said that the circumstances of your case puts it under Category 3 – life imprisonment. Counsel cited comparative cases in point which I will discuss further down in this judgment. He therefore called for a sentence between 35 years and life imprisonment.

THE LAW

14. The offence of willful murder is provided by Section 299 of the Criminal Code Act Ch. 262. It says:

“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 willful murder.

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

15. The Court, however, has an unfettered discretion under S.19 of the Code to impose life imprisonment instead of a shorter term of years.

16. Willful murder is the most serious of homicide offences and is one of only a very few offences, (e.g. treason, privacy at high seas or attempt thereof) that carry the death penalty.

17. The penalty is reflective of society’s value for the sanctity of life and that nobody should take the life of another with impunity. Sanctity of life is universally held and the taking of life has and still at different times, places and culture attracted the penalty of death as direct retribution (retributive justice), the ultimate form of which is that which we often referred to as “jus taliones or “jungle justice” or as expressed in the oft quoted biblical text “Life for life, eye for eye, tooth for tooth”. Fortunately retribution for unlawful killings is no longer executed summarily as was done in the past.

18. In a democratic society where the rule of law prevails this is now done through the Judicial System. It is left to the courts to decide guilt and the appropriate penalty based on the law and the circumstances of each case and comparing them with similar cases that have been decided by the courts. (Judicial Precedence)

COMPARATIVE SENTENCES

19. Let me now briefly consider a few cases to see what the sentencing trend for willful murder cases has been.

20. In The State –v- Peter Wirundi (2010) N3994, the prisoner pleaded guilty to one count of willful murder. He killed his second wife whom he suspected of having affairs. He inflicted multiple wounds on her. The deceased died of massive blood loss. The prisoner was a first time offender. David J. sentenced the prisoner to 30 years imprisonment with hard labour.

21. In The State –v- Mamanane Guri (No.2) (2009) N3771, the prisoner was convicted after trial for the willful murder of his brother. He speared his brother on the chest with a “spear knife” during an argument over use of his canoe. The court took into account that there was a deliberate intention to kill and that the offence was prevalent. Even though the prisoner was unsophisticated the court viewed that the aggravating factors of the offence outweighed the mitigating factors and that there was need for a deterrent sentence. The prisoner was sentenced to 30 years imprisonment.

22. In The State –v- Isak Wapsi (2009) N3695 the prisoner pleaded guilty to willfully murdering the deceased whom he believed to be a sorcerer. He approached the deceased in his cocoa fermentry. Without any warning or provocation he proceeded to cut the deceased’s legs with a bush knife, severing the right leg and inflicting significant damage to the left leg. The held the following mitigating factors in the prisoner’s favour; plea of guilty, he was a first time offender, had a genuine belief in sorcery, acted alone, co-operated with police and relatively unsophisticated. There, however, were aggravating factors. These were; this was a vicious and barbaric killing, the prisoner showed very little remorse, displayed a very strong...