The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 20 February 2012
• Court: National Court
• Citation: (2012) N4591
• Docket Number: CR NO 597-600 of 2010
• Year: 2012
• Judgement Number: N4591

Full Title: CR NO 597-600 of 2010; The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

National Court: Cannings J

Judgment Delivered: 20 February 2012

N4591

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 597-600 OF 2010

THE STATE

V

LOTIVI MAL, MOSES MAL,

EMMANUEL ONG & KATHRINE MAL

Madang: Cannings J

2012: 8, 9, 16, 20 February

CRIMINAL LAW – sentencing – Section 299 (wilful murder) – trial – fight between two groups of people – group attack on victim – use of offensive weapons –four offenders, markedly different degrees of involvement

Four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people. The third offender directly killed the deceased by striking him in the head with an iron rod; he had the greatest degree of involvement in the offence and was regarded as the principal offender. The first and second offenders did acts for the purpose of aiding the principal offender commit the offence, while the fourth offender counselled the others to commit the offence. This is the decision on sentence.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, some mitigating factors, weapons used, strong desire to kill) is 20 to 30 years imprisonment.

(2) Mitigating factors: group fight, spontaneous incident, not premeditated, no prior convictions, good community records, genuine attempt to reconcile with deceased’s family.

(3) Aggravating factors: use of lethal weapons, it was a vicious, savage assault.

(4) The sentences must reflect the differing degrees of involvement. As the principal offender directly killed the deceased, he received the heaviest sentence: 30 years imprisonment. The degree of involvement of the other three was similar and much less than that of the principal offender, warranting sentences of 20 years imprisonment each for the first and second offenders and 17 years for the fourth offender (whose lesser sentence reflected two mitigating factors peculiar to her).

(5) The pre-sentence periods in custody were deducted but there was no suspension of any parts of the sentences as the process of reconciliation with the deceased’s family was not complete.

Cases cited

The following cases are cited in the judgment:

Ignatius Pomaloh v The State (2006) SC834

Manu Kovi v The State (2005) SC789

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

The State v Chris Baurek CR 146/2009, 26.05.10

The State v Isak Wapsi (2009) N3695

The State v Joel Otariv(2011) N4409

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457

The State v Mathew Misek (2012) N4561

The State v Moses Nasres CR 1365/2006, 20.04.08

The State v Seth Ujan Talil (2010) N4159

SENTENCE

This was a judgment on sentence for four offenders convicted after trial of wilful murder.

Counsel

J W Tamate, for the State

M Mwawesi, for the offenders

20 February, 2012

1. CANNINGS J: This is a decision on sentence for four offenders convicted after trial of the wilful murder of Daga Nanas, a man aged in his 40s, who was killed almost instantly as the result of a fight between two groups of people at Four Mile Junction, on the outskirts of Madang town, late on the afternoon of Saturday 28 February 2009. The offenders are related. The fourth offender, Kathrine Mal, is the mother of the third offender, Emmanuel Ong, and an aunt of the first and second offenders, Lotivi Mal and Moses Mal, who are brothers.

2. The deceased received, at least, the following injuries in the fight:

· compound fracture of mandible (lower jaw) with missing teeth (two incisors);

· compound fracture of maxilla (upper jaw) with missing teeth (four incisors);

· penetrating knife wound to the left side of the chin, with exit wound at left upper lip;

· superficial, 10 cm long, scalp laceration;

· 4 cm long right supra-orbital laceration;

· collapsed lung, due to tooth in right main bronchus.

3. The cause of death was asphyxiation brought about by the compound facial fractures, which led to airway obstruction. The third offender, Emmanuel Ong, was one of two persons (the other was not before the court) who directly killed the deceased. He was found to have hit the deceased on the back of the head with a three-cornered iron rod, causing him to fall, and then hit him again on his side and also smashed his jaw, causing the compound fractures of the mandible and maxilla, which led to asphyxiation, which was the cause of death. There was no lawful justification or excuse for his killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder.

4. The other offenders had different types of involvement. The first offender, Lotivi Mal, assisted in the killing of the deceased by attacking him with a knife, cutting him on the head, at the same time the deceased was being attacked by others. The second offender, Moses Mal, assisted in the killing of the deceased by threatening people with a pistol, preventing them coming to the aid of the deceased. Lotivi Mal and Moses Mal were found to have done acts for the purpose of aiding Emmanuel Ong to commit the offence of wilful murder and aided Emmanuel Ong in committing that offence. Each was deemed under Sections 7(1)(b) and (c) of the Criminal Code to have taken part in committing the offence and to be guilty of it.

5. The fourth offender, Kathrine Mal, drove her vehicle to the scene of the fight while it was in progress, got out and shouted the words ‘Kilim Ol!’ or ‘Kill him!’ or words to that effect. Her conduct and words inflamed the fight and the attack on the deceased. She was found to have counselled other persons, including Emmanuel Ong, to commit the offence of wilful murder. She was deemed under Section 7(1)(d) of the Criminal Code to have taken part in committing the offence and to be guilty of it. Further details of the circumstances of the offence are in the judgment on verdict, The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457.

ANTECEDENTS

6. None of the offenders has any prior convictions.

ALLOCUTUS

7. The offenders were each given the opportunity to address the court.

Lotivi Mal: The court has said I am guilty so I ask for mercy for all of us. What I want to say is in my pre-sentence report. Thank you. [In the PSR he indicates that he wants to make peace with the deceased’s wife and children.]

Moses Mal: I accept the decision of the court. I was in the wrong place at the wrong time. I ask for the mercy of the court and a non-custodial sentence so that I can come out into the community and assist the deceased’s wife and family.

Emmanuel Ong: I accept the decision of this honourable court and I respect the judgment of the court. I wish to express my remorse for the deceased’s family. I am a father myself and I can understand how difficult life must now be for the deceased’s children. I have recently graduated from university and my life is just beginning. I had a decent job and I was earning an income for my family. There is still a lot I can do to assist in the development of my community. If I am required to spend a long time in prison this will be a great burden on my wife and my son. Please consider me for probation.

Kathrine Mal: I respect the decision of the court. I was in the wrong place at the wrong time. In the period since my conviction I have made peace with the deceased’s wife. My family has reached an agreement with her. She will receive compensation and land. She has been threatened by some of her own people who don’t want her to make peace with us. Despite that, there is peace between us. I ask for the court’s mercy to be shown to all of us.

PRE-SENTENCE REPORTS

8. A pre-sentence report for each offender was prepared by the Community Corrections and Rehabilitation Service. All the offenders are from Thalim village, Four Mile.

9. Lotivi Mal is 22 years old and single. His mother is Kathrine Mal’s sister, Lydia Mal. He has a grade 10 education. He had casual employment with a road construction company over an 18-month period after he left school and has received a good employer reference. His health is sound. He has a strong family support network.

10. Moses Mal is 24 years old and recently married. He is Lotivi Mal’s elder brother. He has a grade 10 education. He subsequently obtained a certificate in panel beating and spray painting at Ramu Vocation Training School. He had regular paid employment for nine months before this court case intervened and has received a good employer reference. His health is sound. He has a strong family support network.

11. Emmanuel Ong is 25 years old and married with one child. He graduated from Divine Word University in 2010 with a Bachelor of Business (Management). He was employed for almost two years by the National Development Bank as a graduate management trainee and then by a local bio-products company...