The State v Hungi Koeskapi (2004) N2654

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 26 August 2004
• Citation: (2004) N2654
• Court: National Court
• Year: 2004
• Judgement Number: N2654

Full Title: The State v Hungi Koeskapi (2004) N2654

National Court: Lenalia J

Judgment Delivered: 26 August 2004

N2654

PAPUA NEW GUINEA

[In the National Court of Justice]

CR. NO: 929 OF 2004

THE STATE

-v-

HUNGI KOESKAPI

Mendi: Lenalia, J.

2004: 18, 25 Aug.

Criminal Law – Wilful murder – Guilty plea – Criminal Code, s. 299 (1), Ch. No. 262.

Criminal Law – Wilful murder – Plea – Factors for consideration – Attack of an

unarmed victim – Use of lethal offensive weapon – Use of bayonet – Payback killing – Gruesome and barbaric – Deliberate and calculated killing – Worst type case – Appropriate penalty – Imprisonment for life.

Cases cited:

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

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

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

Charles Ombuso -v- The State [1976] PNGLR. 335

State -v- Steven Loke Ume, Charles Patrick Koana & Greg Wawa Kavoa (1997)

The State -v- Arua Maraga Hariki (2003) N 2332

Jae Fae Leslie Leslie -v- The State (1998) SCRA 82 OF 1996

Counsels

Mr. S. Kesno, for the State

Mr. P. Kapi, for the Accused

26th August 2004

LENALIA, J. In this case an indictment was presented to this Court by Mr. Kesno of counsel for the State on the 18th day of this month containing one count of willful murder on which the accused is charged that on the 17th day of January 2004 at a place called Wombip – upper-Mendi, he willfully murdered Moses Akivi contrary to s. 299 (1) of the Criminal Code.

The charge was read and explained by the Court to the accused in terms of the brief facts presented to Court by the State counsel. The accused indicated through the Court Interpreter that he understood the charge. When asked by the Court to plea, the accused entered a guilty plea.

Background facts:

On Saturday the 17th day of January 2004, the accused followed the victim to a number of places by monitoring Moses Akivi (deceased) very closely. In the morning of that date, the victim and a number of his young friends came into Mendi town. Two of the youths accompanying the deceased to town were Levi Sett a 14 year old student at the Bela Primary School and David Akivi 17 years old a Grade 7 at the same School. The later is the brother of the deceased.

At the Bela bus stop, Levi Sett and Daniel Akivi noticed that the accused was also standing awaiting a bus. When a 25 seater bus came the victim and his four youths got into it and all noticed that the accused also got in. On the way between Bela and Mendi town, all passengers were seated whilst the accused merely stood up until they all got off in town.

Wherever, the victim and the four youths went around in town, Levi Sett observed that the accused was following them from place to place. The accused somehow decided to live first to go back to the village. When the deceased and his boys returned to the village Levi saw the accused walked up to Bela from another village. When Levi and Daniel saw the suspicious movements by the accused, they expected something to happen later that day.

Then by 2 pm that day when the rugby games were on, the deceased was a player in one of the teams. When the deceased was changing into his sports gear, some of his friends and his brother were with him. The accused sent two of the boys to buy smoke in the nearby market. At that stage the accused gave the two boys K10.00, they walked some few metres away from the accused and deceased and turned back to ask the accused how much money they should spend on smoke. As they looked back, they saw the accused pulled out the bayonet from his trousers and plunged it into the deceased neck below the left ear. He purposely sent the deceased’s relatives away so he could kill the deceased.

Mr. Nick Nosum, the team manager of a team called “Firestorms” standing nearby the scene of the brutal killing, said he saw the accused plunged the sword into the neck of the victim and thrust it in and out, pushed it sideways thence pulled the sword out, he leaked the blood and started to run for his life. Another witness with a similar name to that of the deceased Daniel Akivi said after him and Nick Nosum took some few steps away he too turned back to ask the accused how much money he should spend on smoke, he was in time to see the accused thrust the bayonet into the left side of the victim’s neck and when the sword was in the neck he saw the accused moved or pulled the sward to and from the deceased’s neck.

The situation was such that, soon after the accused pulled his bayonet out from the deceased’s neck, the victim immediately collapsed and died. The medical report reveals a glaring finding where the doctor found amongst other findings that the left common artery was severed and the artery that is very close to the heart supplying blood to the left side of the brain was totally cut resulting in blood being pump from the blood veins being ejected quickly. It thus resulted in death.

Allocutus and Submissions:

On his allocutus, the accused said he is sorry to God and to the Court for killing the deceased. That some of the deceased clans have killed certain members of his family so he killed the deceased. He further said his line had paid a large sum of compensation of K25,000.00 cash and a total of 23 life pigs and that was only a “bel kol” money. Full compensation will be made later. As to how soon is not clear from his statement.

Mr. Kapi of counsel for the accused conceded that this case was one of worst type of killing and urged the Court to take into account the sentencing guidelines set down by the Supreme Court in Goli Golu -v- The State [1979] PNGLR. 653 and Ure Hane -v- The State [1984] PNGLR. 105. Mr. Kapi reiterated the issue of compensation had been paid. He urged upon the Court to take the accused guilty plea into account on sentence. He cited a number of cases dealing with charges of willful murder. I shall refer to some of them later.

Mr. Kesno for the State submitted on the other hand that the crime committed by the accused is one of those “worst type case” and that this was a brutal day light killing of an innocent person without due regard to the protection of life guaranteed by s.35 of the Constitution. Mr. Kesno further submits that as deterrent measure, the Court ought to consider either life imprisonment or the maximum being imposition of the death penalty.

Law

Under s.299 (2) of the Criminal Code a person convicted of willful murder “shall be liable to be sentenced to death”. When Papua New Guinea obtained Independence on 16th September 1975, the Criminal Code prescribed the death penalty for willful murder. By an amendment the Criminal Code (Amendment) Act 1976 (Act No.2 of 1976) it was amended to life imprisonment. However due to the upsurge of law and order problem and the general violence experienced then in some parts of the country, the Parliament decided to reintroduce the death penalty. Then in 1991, by an amendment called the Criminal Code (Amendment) Act 1991 (Act No. 25 of 1991), Subsection (2 ) of s.299 of the Code was repealed resulting in the reintroduction of the death penalty.

It is the Parliament’s decision that the death penalty has been reintroduced. The people of this country have spoken through their elected representatives that the death penalty ought to be given under such circumstances as they fall into the “worst type case” or cases of willful murder. Ure Hane -v- The State (supra). Since the amendment came into operation in 1991, the National Court has sentenced a number of persons to the death penalty. What I might call, the stepping stone case was that of Ombusu -v- That State [1996] PNGLR. 335. where the appellant was sentenced to death for a horrific willful murder of another man in Oro Province. The appellant in the above case was sentenced to death. A five men bench Supreme Court judges consisting of Amet C.J. Kapi DCJ. (as he then was) Los, Injia (as he then was) and Sawong JJ. quashed the decision on technical grounds only.

The second death sentence so far imposed since the 1991 Amendment was in Kimbe by Woods, J. in Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa -v- The State (1997) unreported judgment of 7th February 1991. The three appellants appealed to the Supreme Court. That Court consisting of three judges dismissed the appeal against their convictions and sentence. That sentence stands to be executed.

Following the above, Salika, J. in The State -v- Arua Maranga Horiki (2003) N2332 sentenced the accused who committed a double willful murder on two separate victims. For the first count, he was sentenced to life imprisonment and the second one the death penalty was given. The next case is that of The State -v- Kepak Langa (2003) CR. No. 300 of 2003 where His Honour Jalina, J. sentence the accused to death for willful murder after having been found guilty of a brutal murder when the accused set up an ambush and when the victim came...