The State v Theo Raphael (No 2) (2002) N2181

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 February 2002
• Citation: (2002) N2181
• Court: National Court
• Year: 2002
• Judgement Number: N2181

Full Title: The State v Theo Raphael (No 2) (2002) N2181

National Court: Kandakasi J

Judgment Delivered: 21 February 2002

N2181

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 907 of 2001

THE STATE

-V-

THEO RAPHAEL (N0.2)

WEWAK: KANDAKASI, J.

2002: 19th, 21st of February

DECISION ON SENTENCE

CRIMINAL LAW-Sentence-Wilful murder-Dispute over land-Repeated attacks with intent to kill when deceased was already disabled-Prisoner found guilty after trial-First time offender-Categories of wilful murder considered-Case not warranting maximum penalty of death-Sentence of 35 years imprisonment imposed-ss.19 and 299 Criminal Code.

FACTS:

The prisoner was found guilty of wilful murder after a trial. He killed the deceased over a land dispute. He planned the murder and executed it. The prisoner was a first time offender and has had no bad antecedent.

Held:

1. Case not falling into worse category of wilful murder as it was not committed in aggravating circumstances such as pursuing another illegal purpose like robbery.

2. A term of years sentence is appropriate having regard to the prisoner being a first time offender and the absence of any serious aggravating circumstances.

3. A sentence of 35 years in hard labour is inappropriate.

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

The State v. Darius Taulo (unreported judgement) N2034

The State v. Ian Napoleon Setep (unreported judgement) N1478

The State v. Andrew Keake (unreported judgement) N2079

The State v. Godfrey Edwin Ahupa (unreported judgement) N1789

Counsels:

Mr. M. Ruari for the State

Mr. M. Mwawesi for the Accused

21st February 2002

KANDAKASI J: On Thursday last week (14th) I found you guilty and convicted you of the willful murder of one Ronald Ikiakdu contrary to section 299 of the Criminal Code. That was after a trial with submissions on the 8th and 11th of this month. I then administered your allocutus and heard submissions from both your lawyer and that of the State as to the kind of punishment this Court should give you. After that, I reserved a ruling on your sentence.

Relevant Facts

The relevant facts are set out in my judgement on verdict. I need not repeat them save only to point out the factors I consider important for the purposes of determining an appropriate sentence for you. In that respect, I note the following factors relevant:

1. You had an on going dispute over a piece of land with the deceased.

2. There is no evidence of you taking that dispute to the village court in your area or the village leaders and elders to help resolve it for you.

3. On the day of the murder, you set out to kill the deceased by arming yourself with a spear and bush knife and going to the deceased house.

4. On finding that the deceased was not home, you cut down a banana tree and chopped it into pieces and told the deceased wife and mother in-law that you would kill the deceased.

5. You then returned to your house and waited for the deceased to return to the village.

6. When the deceased returned to the village, you armed yourself with two spears and a bush knife and started to attack the deceased.

7. The deceased started to run away from you toward his younger brother Soni Kapuk’s house.

8. As he was running away, you first shot him with one of the spears from the back and he fell to the ground. You then speared him the second time again from the back when he was already on the ground. As if that was not enough, you next used the bush knife to cut the deceased on his head fracturing his skull. You did that to ensure the deceased is not around to compete with your ownership of the disputed land and that he would not attack you.

9. The injuries to the head and one of the injuries to the back with one of the spears were the most fatal according to the medical evidence, as they caused the deceased death.

10. Apart from planting some sago on the disputed land, the deceased did nothing to provoke your attack and his death on the relevant date.

Allocutus and Submissions

In your allocatus, you told me that this is the first time for you to stand before a court on a criminal charge. You expressed sorrow and remorse for the loss that you have brought upon the family of the deceased, who are also your relatives. You unfortunately took the life of the deceased over a land dispute. Therefore, you asked me to exercise mercy and leniency toward you.

Your lawyer has submitted in addition and I note that, you are a villager with no education. You are a member of the Assemblies of God Church and that, you have never been involved in a crime before. Both of your parents are alive but elderly. You are relatively young and are married with 4 children. Finally, you brought about the deceased death because of a dispute over land.

Your lawyer has also submitted that, this is not a worse case of willful murder. As such, he submitted that, I should not impose on you the maximum prescribe penalty of death. Instead, he submits that I should give you a sentence that is lower than death. He drew my attention to the case of Goli Golu v. The State [1979] PNGLR 653.

Mr. Ruari for the State on the other hand, submitted that, your case falls in the worse category or type of willful murder. This he submits is the case because, you planned the murder and executed it. Your motive for doing so, was the land dispute and a desire on your part to eliminate the deceased from competing with your claim to the disputed land. Further, he submitted that, this kind of killing is prevalent and as such, the maximum prescribed sentence of death must be imposed against you to serve as a deterrent to other would be willful murderers.

The Offence

The offence of wilful murder is prescribed by s.299 of the Criminal Code as follows:

“1. Subject to 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.”

It is now well accepted that s.299 of the Code, is subject to the provisions of s.19 of the Code. And that section reads:-

“(1) In the construction of this Code, it is to be taken, except when it is otherwise expressly provided –

(aa) person liable to death may be sentenced to imprisonment for life or for any shorter term.”

In view of the wording in s.19(1)(aa) of the Code, sentences other than death have been imposed for persons found guilty of wilful murder as in your case.

In the case cited by your lawyer, the Supreme Court said that the maximum sentence prescribed for any offence must be reserved for the worse kind of the offence under consideration. Mr. Goli Golu was a well-educated man with an unblemished record. He was convicted and sentenced to the then maximum sentence of life imprisonment for killing the deceased in the precincts of the Court House at Kwikila in the Central Province. On the day of killing, two opposing clans attended the Kwikila Court for court proceedings against some of them following a riot between the two groups over a land dispute. On the day of the hearing, extra police were deployed to maintain maximum security and peace. Notwithstanding the tight security, the appellant got in with a knife undetected. Then in the presence of all the policemen there, he stabbed the deceased whom he did not...