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

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 13 December 2012
• Court: National Court
• Citation: (2012) N5080
• Year: 2012
• Judgement Number: N5080

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

N5080

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 802 OF 2011

THE STATE

V

LADIMAT KILALA, DIMAN NANAT, YANG NANAT & BATIL

RAGIA (NO.3)

Kokopo: Lenalia, J

2012: 16th October,

8th & 12th November

& 13th December

CRIMINAL LAW – Charge of willful murder – Sentence – Factor for consideration – Criminal Code s. 299.

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 (N0.3)-v-The State [1982] PNGLR 92

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

Lawrence Simbe-v-The State [1994] PNGLR 38

Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State SCRA 10 of 1997

Manu Kovi-v-The State (2005) SC 789

Joseph Enn v The State (2004) SC 738

Max Java v The State (2002) SC 701

The State v Joseph Ulakua (2002) N2240

Alois Peter Bore Kovei v The State (2001) SC 678

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, Tom Gurua Kerua and David Bawai Laiam v The State (2004) SC741

The State v Charles Langu (No.2) (2004) N2652

The State v Kiri Kirihau Harisu (2006) N3168

The State-v-Gregory Kiapkot & 4 Others (2012)

The State-v-Kenny Wesley (1.5.12) Unreported Judgment Cr. No 293 of 2010

The State-v-Seth Ujan Talil (2010) N4159

Counsel

Mr. L. Rangan, for State

Mr. P. Kaluwin, for Accused

13th December, 2012

1. LENALIA, J: The four accused were indicted with one count of willful murder contrary to section 299 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:

Ø All the four accused are first time offenders.

Ø 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) SC 789.

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 s. 597 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:

Ø a wilful murder committed in the course of committing

thefts, robbery, break and enter or rape,

Ø wilful murder of a policeman or prison officer acting in

execution of their duties,

Ø wilful murder done in course of resisting arrest or

escape from lawful custody,

Ø wilful murder of person in police or court custody,

Ø a payback killing of completely innocent person,

Ø a second or third murder,

Ø a wilful murder committed by a person having a long

record of violence, wilful murder of VIPs.

12. Since the reintroduction of the death penalty in 1991, a number of accused offenders have been sentenced to death. The first of those cases where the death penalty has been imposed is The State-v-Ombusu (Unreported National Court Judgment of 17th February 1995). That was the case where Doherty; J. imposed the death penalty on the accused, a man from Popondetta for wilful murder.

13. On appeal by the appellant in that case, the Supreme Court comprising of five men bench upheld the appeal in both conviction and sentence for rape and wilful murder were quashed on technical grounds only, (See Ombusu-v-The State [1996] PNGLR. 335).

14. The second case where death penalty was imposed in this jurisdiction after the re-introduction of the death penalty in 1991 was in The State-v-Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unreported National Court Judgment of 7th February 1997) where Woods; J. sentenced the three accused to death for what His Honour in that case considered to be one of those worst type cases. The three appellants appealed, against both convictions and sentences of death, after grant of legal aid by the Public Solicitor a Supplementary Notice of Appeal was filed on 23 July 1997 in which they appealed against conviction only.

15. The Supreme Court comprising of Amet; CJ: Kapi; DCJ: (as they were then) and Sevua; J: dismissed the appeal against conviction only, (see Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa-v-The State SCRA 10 of 1997 decision dated 4 May 2000). The appeal against sentence under the original notice of appeal could not proceed before that bench because it was not clear from the supplementary notice of appeal whether the appellants had abandoned their grounds of appeal against sentence. The appeal against the sentence was finally determined on 19 May 2006 by a five (5) member Supreme Court bench comprising of Kapi CJ; Injia DCJ; Los, Hinchliffe & Davani JJ. The appeal was allowed and the death sentences imposed on each appellant by the National Court in Kimbe on 7 February 1997 were quashed.

16. There are other cases which I do not wish to refer to where offenders had been sentenced to death. However on the most recent cases in this Province is that of The State-v-Gregory Kiapkot & 4 Others (14.7.2012) N4381 a multiple wilful murder case of eight (8) victims who were killed on the sea between Duke of York islands, Rabaul, East New Britain Province and West Coast of Namatanai, New Ireland Province. The court in that case found that, the first accused had been upset with the owners of the boat Palex in regard to an incident that occurred back home where one of his relative was severely injured. Due to that, he then conspired with the other co-accused who set up a plan to ambush passengers of the boat called “Palex”.

17. When the said boat sailed to the point at Makada Duke of York Islands, the two boats carrying the...