N604

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

JOHN ELIPA KALABUS

V

THE STATE

Waigani
Kidu CJ Kapi DCJ Woods J

24 August 1988
27 October 1988

CRIMINAL LAW - Appeal against sentence - Murder - Sexual assault on nine-year-old girl - Sexual sadist - Life imprisonment imposed - Whether worst type of case - Effect of Plea of guilty - Relevance of intoxication - Rehabilitation - Life imprisonment confirmed

A 37-year-old male with a history of psychological sexual problems and a previous conviction for rape, took a nine-year-old female child from her home and raped and assaulted her in circumstances suggesting sexual sadism. The victim later died from her injuries. The accused pleaded guilty and the trial judge, after finding that the case was one that fell into the worst type of category of offences for which the penalty of life imprisonment should be reserved, sentenced him to life imprisonment.

On appeal against sentence:

Held

That the sentence should be confirmed.
Discussion of factors relevant to sentence in the circumstances including, plea of guilty, intoxication, rehabilitation, previous conviction and lapse of time since previous conviction.

Cases Cited

Acting Public Prosecutor v Andrew Lalaina and Angelo Ume (Unreported, Supreme Court, No SC201, 3 July 1981).
Public Prosecutor v Tom Ake [1978] PNGLR 469.
State, The v John Kalabus [1977] PNGLR 87.
Ure Hane v The State [1984] PNGLR 105.

Appeal Against Sentence
This was an appeal against severity of a sentence of life imprisonment for murder.

Counsel

E Kariko, for the appellant.
S L Soi, for the respondent.
Cur adv vult

27 October 1988

KIDU CJ: The appellant was convicted of the murder of a nine-year-old girl. He pleaded guilty. The sentence imposed on him, which he appeals against, was imprisonment for life.

GROUNDS OF APPEAL

He says that the sentence was manifestly excessive in that:

(a) the trial judge wrongly concluded that his case fell into the worst category of its kind;

(b) the trial judge erred in failing to consider or properly consider the effect of the guilty plea by him;

(c) the trial judge erred in failing to consider or properly consider the long lapse in time between his convictions;

(d) the trial judge erred in not considering or properly considering the effect of intoxication at the time of the offence;

(e) the trial judge erred in failing to consider or properly consider the rehabilitation aspect of sentencing;

(f) the trial judge acted without conclusive evidence in his judgment that he was likely to offend again.

He asks this Court to quash the sentence of life imprisonment and impose in its stead a term of years of 12 to 15 years duration.

On 5 October 1986, the appellant, then 36 years old, returned to the house where he had been staying (with the victim and her family) in the early hours of the morning. The victim was asleep. He took her from her room to the bushes and had sexual intercourse with her and it was as a result of this unlawful carnal knowledge of a girl under 12 years of age (an offence which carries a maximum penalty of life imprisonment) that the victim died.

Dr Barua’s conclusion was: "According to my findings, as recorded in the post mortem report, the cause of death was haemorrhagic shock and asphyxia due to injury of the vagina."

The post mortem report includes the following findings:

"face: small abrasion medial aspect (L) ear
mouth: scratch mark lateral aspect (L) lip
buttock: blood stains
pubic hair: blood stains
hymen: absent
vaginal
examination: blood clots in vagina — large tear with irregular edges in posterior vaginal wall extending up to the cervix — laceration felt in posterior fornix possibly involving the cervix — laceration in vagina appeared to have been made by a blunt instrument with a lot of force. ..."

The photographs show the brutal damage done to the victim’s body and vagina. The learned trial judge said:

"She died as a result of this brutal assault. She had received horrific injuries to her vagina which was torn and lacerated. It is clear from the medical protocol that substantial force had been used. She died very soon after this savage assault.

It is clear both from photographic evidence and from the medical report that she was assaulted around the head as there is evidence of abrasion and scratch marks in that area. These occurred no doubt as a result of the prisoner’s actions in trying to stop her from screaming. ... The enormity of this crime is apparent from its facts. In considering the circumstances of this offence from the evidence placed before me, I am seized of a revulsion I find hard to express. This was a most savage assault. It fits clearly into the most serious category of offences. It was a foul and inhuman act and as such would cause anger and revulsion in any right-minded member of the society.

The fact that such a crime could be committed against any child of tender years is a pain that travels to the core of one’s being.

The enormity of the crime by itself places it in the worst category of offences. It is an understatement to describe it as horrible."

After finding that the case was one which fell into the worst type of category, the learned trial judge then went on to consider whether or not the maximum penalty should be imposed. In coming to the conclusion that the maximum penalty was warranted, his Honour considered:

the prior conviction for attempted rape in 1977 for which the appellant received a sentence of two years IHL,
report by psychiatrist Dr Andrew,
deterrence,
retribution,
protection of the community,
rehabilitation.

I should state before I proceed further that the fact that a case falls into the worst type category does not mean that the maximum sentence automatically applies. For instance, in any murder case of the worst type where the accused person is 14-years-old it would not be, in my opinion, appropriate to impose the maximum sentence of life imprisonment.

Was the learned trial judge wrong when he found that this case was an instance of the worst kind of murder cases?

It is, of course, a question of fact as to whether a case is the worst kind of the type of offence in question.

In this case the charge of murder was one brought under s 300(1)(b) of the Criminal Code (Ch No 262):

"(1) ... a person who kills another person under any of the following circumstances is guilty of murder:

(b) if the death was caused by means of an act:

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; ..."

The appellant, an adult male of 37 years, was in the act of having carnal knowledge of a girl under the age of 12 years (she was aged nine years) contrary to s 213 of the Criminal Code — that is, it is unlawful for a person to have carnal knowledge of a girl under the age of 12 years. The maximum sentence is life imprisonment.

It is commonsense, especially to persons who have had sexual experience (for example, married men) that an adult male having sexual intercourse with a girl of nine years of age is likely to endanger the life of the girl. An adult male’s penis would be too big for a nine-year-old girl’s vagina and liable to cause damage, as this case illustrates, and would endanger the girl’s life.

Dr Andrew’s report says:

"Your client states that after his release following the previous offence there has been a change in his sexual response. He recognises in himself a need to inflict some pain in order to achieve full satisfaction and that his orgasm is more intense if his partner experiences pain. He has also found that if he cannot find a normal sexual outlet he can gain sexual relief by inflicting pain on animals. ... He states also that he finds it easier to reach orgasm if his partner is young. His wife was 17 and he himself nearly 30 when he married. Although he finds satisfaction in his wife, as she gets older there has been a greater need for him to cause her pain as a preliminary to or during sexual intercourse." [Emphasis added.]

The evidence shows clearly that when the appellant had carnal knowledge of the deceased he intended to inflict pain on her to get satisfaction. There was substantial damage done to the poor little girl’s vagina. In his confessional statement the accused stated:

"I laid her down, I went on top of her and I fucked her. She was screaming: saying that she was going to tell her parents. I got frightened and closed her mouth with my hands — the other hand I held her throat, then I left her and went back to the house."

This statement shows the determination with which the appellant violated the deceased. It shows also that she did not consent to the appellant having sexual intercourse with her. Over her screaming he brutally violated her and caused her death.

As far as I am concerned the facts, including the medical evidence and psychiatric evidence support the learned trial judge’s finding that this murder fell into the worst type of its kind.

Was the imposition of the maximum sentence of life imprisonment justified? The appellant says that because he pleaded guilty and because of the other matters already mentioned, a determinate sentence should have been imposed.

PLEA OF GUILTY

The practice in this jurisdiction is that accused persons who plead guilty in ordinary and less serious cases are generally entitled to credit for their plea. But when a case is a serious one such as wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself deserves no credit. In fact this Court has said:

"... Similarly, we consider that the pleading guilty ought not to avail in such a case, that of a charge of murder, except to the possible extent that it indicates remorse and contrition and the possibility of a more ready rehabilitation. (Reg v de Haan [1968] 2 QB 108); and in this connection we distinguish the leniency which courts extend where pleas of guilty are entered to less serious crimes thereby saving embarrassment to witnesses, or heavy inconvenience to the State.":

(Public Prosecutor v Tom Ake [1978] PNGLR 469 at 472)

The learned trial judge in this case mentioned that the appellant had pleaded guilty but he apparently did not consider that the plea warranted a reduction in sentence. Remorse and contrition do not necessarily result in a reduction of sentence — the gravity of the offence may override them as was the case here.

The matter of rehabilitation was adverted to by the trial judge. He said in his judgment (at p 6):

"His disorder is well established. I am firmly of the view that any consideration of his individual concern for rehabilitation should be subjugated to the interest of the community."

So it is clear from the judgment that the trial judge considered rehabilitation but decided that it was not applicable in the appellant’s case.

Rehabilitation or reformation is a factor to be considered in assessing a sentence. But in serious cases such as this one it is something to be aimed at only in so far as it is compatible with the main function of the Court of protecting the public: see Acting Public Prosecutor v Andrew Lalaina and Angelo Ume (Unreported, Supreme Court, No SC201, 3 July 1981). In this case the learned trial judge rightly gave the protection of the public aspect more emphasis.

The plea of guilty was in my view properly rejected as a mitigating factor. There was no remorse or contrition shown in the appellant’s confessional statement dated 7 October 1986, a statement made two days after he committed the offence. Up to the time he pleaded guilty there was no sign of remorse or contrition. It was his lawyer who said in his address on mitigation that he was remorseful.

Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one.

THE LAPSE OF TIME

The appellant served two years for attempted rape: The State v John Kalabus [1977] PNGLR 87. He came out of jail in 1979. Between 1979 and 1986 he was not convicted of any serious offences. His lawyer says this "clean" record should have been considered and the prior conviction should not have been taken into account in sentencing because of the seven year lapse of time.

It is obvious from the judgment that this prior conviction was not used for purposes of arriving at the sentence imposed although it was mentioned without comment on p 3 of the judgment.

Even if it had been used in assessing the proper sentence I would approve of it because in the most serious offences like murder, rape and violent armed robbery, a prior conviction for such an offence must be taken into account. The lapse of time should not be accepted as a mitigating factor.

EFFECT OF INTOXICATION

The appellant voluntarily got drunk. He was responsible for his actions. He knew that his propensity to cause pain and have sex with young girls was increased by liquor yet he deliberately got himself drunk. I see no reason why the trial judge should have considered his intoxication. I see no merit in this ground of appeal at all.

REHABILITATION

I have already made some comments with respect to rehabilitation and I only add the following comments. There are various purposes for punishment and they include rehabilitation. But rehabilitation of the criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes. In this case the learned trial judge said:

"In my view, there are three main areas of consideration in determining punishment in a case such as this — deterrence, retribution and the protection of the community."

Quite rightly these purposes of punishment were emphasised as the facts of the case warranted. This was a case of the appellant, a 37-year-old man, causing the death of a nine-year-old girl whilst in the process of having sexual intercourse with her, an act which carries a penalty of life imprisonment under s 213 of the Criminal Code. The gravity of the offence is obvious.

IS THERE LIKELIHOOD THE APPELLANT WILL OFFEND AGAIN?

The learned trial judge did not specifically say that the accused was likely to commit the same offence again in future but it is clear from his comments that he thought so. But this conclusion was open to the trial judge from the report of Dr Andrew, the psychiatrist. Even if there is no likelihood of the appellant committing similar crimes again, the fact is, this particular murder was so bad that it warranted the maximum penalty. The sentence imposed was proportionate to the offence.

I would dismiss the appeal and confirm the sentence of life imprisonment.

KAPI DCJ: I have read the judgments of the Chief Justice and Woods J and I agree. I have nothing further to add.

WOODS J: This is an appeal against the imposition of the maximum penalty of life imprisonment for murder. It is an appeal against the sentence of Wilson J following a plea of guilty by John Kalabus to the murder of one JK.

The facts are that the appellant was 37 years of age at the time and the victim was a nine-year-old girl. On 5 October 1986, at Morata, the appellant returned to the house where he had been staying with the victim and her family. He returned in the early hours of the morning after having been drinking. He went to lie down and he saw the victim sleeping. He took her from the room to bushes on a hillside nearby and there he had sexual intercourse with her as a result of which she died. She received horrific injuries to her vagina which was torn and lacerated and she was further assaulted around the head as there is evidence of abrasions and scratch marks. These injuries occurred no doubt as the result of the prisoner’s actions in trying to stop the child from screaming. The appellant made a confession in which he said that he was aroused by the sight of the girl sleeping and in which he refers to a personality disorder that he has which manifests itself in sexually deviant behaviour. These matters are covered fully in a Health Services Report prepared by a doctor, Brother Andrew, who refers to the fact that the appellant’s sexual behaviour is associated with the infliction of pain with or in place of the sexual act and with respect to this appellant this behaviour has reached an unacceptable level to the extent of being sexual sadism.

One must remember that the offence here in this case is not wilful murder, but murder under s 300 of the Criminal Code (Ch No 262). However, murder in this category still incurs the maximum penalty of life imprisonment. There has been no submissions that because it is the lesser category of murder that in itself must suggest a lesser penalty.

As I said in the case of Ure Hane v The State [1984] PNGLR 105 at 113:

"When considering a penalty of life imprisonment, the court should in so far as the law allows consider first the penalty — why life imprisonment — before considering the individual it has before it."

In discussing life imprisonment in that case, the court was dealing with a case of wilful murder but looking at the categories of the worst type of wilful murders I referred to the indiscriminate murder, the murder of a passerby or an innocent unrelated person accosted in the bush. That category, however, would clearly cover the facts of this case namely the murder of an innocent victim, someone uninvolved with the accused and done in the perpetration of another crime. In the case before us now we have an innocent girl who was being sexually abused and in the process the appellant kills her. This girl is clearly in the category of an innocent passerby who happened to be merely sleeping in the same house and there is no background motive of any payback or retaliation or domestic dispute which would involve her and the appellant. She just happened to be there when the appellant got his sexual urge. I would further note that being so young the victim here had an even less chance of resisting as she was really in a position of having to do what an adult man wanted. And in such a situation society is more concerned with the protection of young girls like the victim here.

Whilst Bredmeyer J uses the words "wilful murder" in his list of serious kinds of wilful murder in the same case Ure Hane v The State (at 107), the facts of this case would bring it within his first category that he lists namely a wilful murder done "in the course of committing a theft, a robbery, a break and enter or a rape".

Therefore I find that this particular murder is one for which the maximum penalty of life imprisonment is appropriate.

The next matter to consider is the individual concerned. Is it necessary to imprison this particular offender for the rest of his life or can we yet consider the Christian principles of forgiveness and mercy as implied in the preamble to our Constitution? And I refer again to what I said in the Ure Hane case (at 113).

Counsel for the appellant has submitted that the trial judge erred in not properly giving weight to the plea of guilty as showing remorse and the possibility of rehabilitation and that the doctor’s report suggests there is a possibility of treatment remedying aspects of the appellant’s problem. Counsel is clearly having regard to what this Court has said in earlier cases that in offences like murder a plea of guilty does not necessarily carry much weight: see the case of Public Prosecutor v Tom Ake [1978] PNGLR 469 at 472:

"we consider that the pleading guilty ought not to avail in such a case, that of a charge of murder, except to the possible extent that it indicates remorse and contrition and the possibility of a more ready rehabilitation."

It is quite clear in the present case that the trial judge did consider the plea of guilty, as he did refer to it in his sentence, but he weighed that against other factors. It is clear that the possibility of a more ready rehabilitation as stated above was discounted by the trial judge when he said at the appeal book at p 64 "His disorder is well established". And when one further analyses Dr Brother Andrew’s report it clearly notes that whilst his alcohol problem may be cured the alcohol problem really only exaggerates the sexual problem. The sexual problem is still there and there is no guarantee of even a modest success in rehabilitation. Therefore as the trial judge clearly felt, the danger will still be there.

In the circumstances I find that there are no mitigating factors in this case which can lead to a special consideration of the appellant that he should not incur the maximum penalty of life imprisonment for this murder. I therefore dismiss the appeal.

Appeal dismissed

_______________________________

Lawyer for the appellant: E Kariko.
Lawyer for the respondent: Public Prosecutor.