CR NO.998 OF 2011; The State v Willie Wafi (NO. 2) (2013) N5342

• Jurisdiction: Papua New Guinea
• Judge: Gabi, J
• Judgment Date: 07 August 2013
• Court: National Court
• Citation: (2013) N5342
• Year: 2013
• Judgement Number: N5342

Full Title: CR NO.998 OF 2011; The State v Willie Wafi (NO. 2) (2013) N5342

National Court: Gabi, J

Judgment Delivered: 7 August 2013

N5342

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.998 OF 2011

THE STATE

V

WILLIE WAFI

(NO. 2)

Lae: Gabi, J

2013: 07 August

CRIMINAL LAW — sentence after trial — Criminal Code s 299 — wilful murder — innocent victim 46-year-old woman — severe multiple head injuries inflicted by a bush knife — brain tissue exposed — two fingers amputated — retaliatory killing for rumoured killing of prisoner’s son by victim’s son — prisoner’s previous good character, long role as community leader — premeditated killing, strong desire to kill — life imprisonment.

Facts

The prisoner was found guilty after a trial, of wilful murder. He had heard and believed a rumour of the identity of the man who had killed his son. There was no credible evidence to support the rumour. He went to the house of that man and killed the man’s mother by inflicting vicious cuts to her head with a metre long bush knife exposing the brain. The prisoner, aged about 60 years, has two wives, two children from each wife, educated to grade 12 and was a community leader and chairman of the Law and Order Committee for 23 years.

Held

1. Remorse expressed after conviction is normally not genuine, at [17];

2. That the prisoner was acting on a rumour that his son was killed by the victim’s son is not a mitigating factor, such behaviour should be stopped and not tolerated, at [18];

3. The aggravating factors include that the prisoner took the law into his own hands even after the police had assisted the family by transporting the deceased and told his “house line” to await the outcome of police investigation, at [19];

4. The killing was premeditated and accompanied by a strong desire to kill, a revenge killing and the use of violence to resolve disputes must be arrested at all cost, at [21];

5. Prisoner sentenced to life imprisonment.

Cases Cited

Alois Peter IboroKovei v. TheState (2001) SC676

GoliGolu v. The State [1979] PNGLR 653

John ElipaKalabus v. The State [1988] PNGLR 193

Manu Kovi v. The State (2005) SC789

Mary Bomai Michael v. The State (2004) SC737

Steven Loke Ume &Ors v. The State (2006) SC836

The State v. George Kiapkot(2011) N4381

The State v. Mark Bongede(2012) N4683

The State v. Seth UjanTalil(2010) N4159

The State v. SotiMesuno(2012) N4701

UreHane v. The State [1984] PNGLR 105

Counsel

C. Sopa, for the State

C. Koi, for the Prisoner

SENTENCE

7th August, 2013

1. GABI, J: Introduction: The prisoner has been found guilty of wilful murder contrary to s. 299 of the Criminal Code. The maximum penalty for the offence is death.

Facts

2. It was alleged that on 16th May 2010, at about 3.40 am, the prisoner and a large group of men, went to the Dugumari house at Raicoast Compound and surrounded it seeking revenge for the death of the prisoner’s son, Andy Marus.

3. Wilma Dugumari, the forty-six (46) year old mother of the household, was approached by the group, and one of them asked where her own son was. Before she could answer, the prisoner swung a bush-knife at her head injuring her, and then did so again, this time chopping her fingers off. The prisoner pushed her to the ground and put his foot on her neck, holding her down.

4. Then an unknown offender carrying a home-made gun entered the house where Sharon Dugumari was with her baby. He told her to hurry up and leave. Amongst the group, there was talk about burning the house and its contents.

5. As Sharon Dugumari was leaving the house, carrying her baby, she saw and recognised the prisoner. She said to him “Hey, mi save long yu, ya!” He immediately swung his bush-knife at her. She twisted to avoid the bush-knife chopping her baby and lifted her left hand to shield the baby. His blow severed her left forearm, leaving it hanging by the skin. She ran into the nearby tall grass and lay on top of her baby, and the prisoner chopped her on the head, fracturing her skull, and on the back. He left her there for dead.

6. She eventually gathered her strength to stand up and seek help. She saw her house had been burnt to the ground. She got some first aid from a community member at about 5.00 am. She was then taken to hospital where her injuries were treated and recorded.

7. Wilma Dugumari’s body was taken to the hospital. A post mortem was conducted and it was discovered that she died from severe multiple head injuries. In particular, the doctor noted a 17 cm long and 4 cm deep cut from the nose through the face to the right jawbone, and a 21 cm long and 4 cm deep cut to the rear of the skull, exposing brain tissue. Additionally, the deceased’s right hand had two fingers amputated.

Allocutus

8. The prisoner was given an opportunity to address the Court on sentence. He said he is a first time offender, that he was sorry to the Court and to the victim’s family for what he and his family had done to them, that the offence would not have taken place if Shane Dugumari had not murdered his son Andy Marus on 15th May 2010, that he invested heavily in the education of his son Andy Marus, who was doing grade 11 at Bumayong Secondary School and had a bright future at the time of his death, that he is a community leader and Chairman of the Law and Order Committee for the last twenty-three (23) years, that he is almost sixty (60) years of age and that he did not create the problem but only retaliated after his son was killed by Shane Dugumari, who has not been charged for the killing of his son Andy Marus. Finally, he asked the Court for mercy and a lenient sentence.

Antecedent Report

9. I am informed and ascertain from the antecedent report that the prisoner has no prior convictions.

Personal particulars

10. The prisoner is fifty-eight (58) years of age and comes from Harua village, Yanggoru District, East Sepik Province. He has lived at Busu Compound, Lae, for the past twenty-five (25) years. The prisoner has two (2) wives and has two children each from each wife. He is educated up to grade 12. He is a member of the Lutheran Church and was self employed at the time of the offence.He appears to be in good health.

The Law

11. As indicated earlier, the maximum penalty for wilful murder is death. However, a person convicted of wilful murder may be sentenced to life imprisonment or for a shorter term (see s. 19 (1) (aa) of the Criminal Code; Steven Loke Ume &Ors vs. The State(2006) SC836;The State vs. George Kiapkot (2011) N4381).The maximum penalty is reserved for the “worst type” or “worst category” of the offence under consideration: GoliGolu vs. The State[1979] PNGLR 653;UreHane vs. The State[1984] PNGLR 105; Alois Peter Iboro Kovei vs. The State (2001) SC676.I accept the submission by counsel for the State that this offending constitutes a gravely serious case of wilful murder.

12. In Ure Hane vs. The State (supra), Bredmeyer J listed eight categories of wilful murders as the “worst” type at p. 107-109. They include:

(1) Wilful murder done in the course of committing a theft, a robbery, a break and enter or a rape.

(2) A wilful murder of a policemen or a prison warder acting in the execution of his duty.

(3) A wilful murder done in the course of or for the purpose of resisting, avoiding or preventing lawful arrest or in effecting or assisting in an escape from lawful custody.

(4) A wilful murder of a person in police or court custody.

(5) A payback killing of a completely innocent man.

(6) Any second or third murder.

(7) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

(8) A wilful murder of the Governor-General, the Prime Minister, the Leader of the Opposition, the Speaker of National Parliament, the Chief Justice, a Bishop, a visiting Prime Minister, the Pope, or other V.I.P’s.

13. In Manu Kovi vs. The State (2005) SC789, the Supreme Court provided further guidance as to how persons convicted of wilful murder might be sentenced.It was suggested that life imprisonment ought to be considered appropriate following a trial or plea where there were special aggravating features, and the mitigating features were reduced in weight or rendered insignificant by the gravity of the offence, by factors such as:

(i) A brutal killing in cold blood;

(ii) Killing of an innocent, defenceless or harmless person;

(iii) Dangerous or offensive weapons used;

(iv) Killing accompanied by another serious offence;

(v) Victim young or old;

(vi) The crime was pre-planned and pre-meditated;

(vii) There was strong desire to kill.

14. In Steven Loke Ume &Ors vs. The State (2006) SC836, a group of men had killed an innocent woman as a payback killing. She was abducted, raped and viciously murdered. The prisoners appealed against the death sentence imposed upon them. The Supreme Court found that the sentencing Judge had erred in considering himself to be circumscribed by Parliament‘s intention that death penalty be imposed, and in shutting his mind to any mitigating factors. The...