Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ipai [2002] PGNC 69; N2268 (19 June 2002)

N2268

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 243 OF 2001

THE STATE

-v-

KIKO IPAI

Wabag : Jalina, J.

2002. : 12th & 19th June
      

CRIMINAL LAW – Particular offences – Wilful murder – Sentence – Deceased chopped on head with an axe and his body thrown into Porgera River – Conviction following trial – Whether this wilful murder among worst category of wilful murders – Some element of provocation in the non-legal sense – Other mitigating factors also present - Maximum penalty of death inappropriate – Life imprisonment appropriate – Criminal Code s.299 (2).

Papua New Guinea cases cited:
Avia Aihi –v- The State (No. 3) [1982] PNGLR 92.
Ure Hane –v- The State [1984] PNGLR 105.

The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65.

The State –v- Madiroto [1997] PNGLR 95.
The State –v- Tumu Luna, An Unreported Decision of the National Court in CR 933 of 2001 in Wabag dated 20th May 2002.

Counsel:

S. Kesno for the State
P. N’dranoh for the Prisoner

19th June 2002

JALINA, J.: This prisoner was charged with wilfully murdering one Daniel Kapimane at Negeyanga Village, Porgera in the Enga Province on Saturday 20th November 1999, and throwing the body in the Porgera River. The body was found in the Porgera River after a long and difficult search by people from another clan the next day. Those who found the body as well as medical officer saw multiple axe wounds to the deceased’s head.

The prisoner had raised a defence of alibi whereby in both his record of interview with the police as well as in his oral evidence, he said that he was at Politika Village which was quite some distance away attending to a bride price ceremony for his sister and as such he was not at the scene of the crime let alone attacked the deceased on the day in question. The Court however, found the State to have successfully rebutted his defence and convicted him of the offence charged. He now appears before me for sentence.

The maximum penalty under s.299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but Parliament amended Subsection (2) and replaced life imprisonment with the death penalty.

It is well settled in this jurisdiction that the maximum penalty should be reserved for the most serious instances of the offence. In other words, the maximum penalty should be imposed only in cases properly categorised as "worst type" cases (see Goli Golu –v- The State [1979] PNGLR 653, Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 and Ure Hane –v- The State [1987] PNGLR 105).

In his statement on the allocutus he maintained his alibi and thus his innocence but as I said in my judgment on the verdict, I am not at all disturbed by his stand because of the overwhelming evidence from those who come from the same village who saw him take part in a fight prior to the commission of the offence as well as one of them namely Jennifer Malala who followed the prisoner and one Pulapia and saw him attack the deceased and throw the body into the Porgera River.

Mr. N’dranoh in pleading for leniency for his client, has submitted that the maximum penalty be not imposed as this particular wilful murder was not among the "worst type" of wilful murders. He relied on a number of cases such as Ure Hane –v- The State (supra), Avia Aihi –v- The State (supra), The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65 and The State –v- Tumu Luna, An Unreported Decision of the National Court in CR 933 of 2001 in Wabag dated 20th May 2002.

I have referred to Avia Aihi’s case and Ure Hane’s case as they establish the principles that are to be applied when the issue of whether or not the maximum penalty should be imposed arises but since they were decided when life imprisonment was the maximum penalty, they are not relevant now when the maximum penalty is death. The other cases which Mr. N’dranoh referred to were decided after the maximum penalty had been changed from life imprisonment to death so they are relevant to the issue of sentence in the case presently before me.

In The State –v- Yapes Paege & Relya Tanda (supra) the deceased was chopped to death in an ambush situation. He was attacked when he went out of his house to investigate some disturbances. His Honour Woods, J. imposed a life sentence instead of the maximum death penalty because the State Prosecutor made submissions against the imposition of such a penalty.

In The State –v- Madiroto [1997] PNGLR 95, the prisoner pleaded guilty to wilfully murdering an old woman in a most tragic manner. In that case the prisoner dragged the deceased out of her house in her garden, burnt the house, belted her with his hands and pulled her down to a creek nearby. He then threw her facedown on to some stones. After that he took some stones from the creek and began stoning her on her head. Later he squeezed her throat and at the same time pushed her head into the water in the creek and kept it under water until she died. He then released her. So one can imagine the slow, agonising and painful death the deceased went through starting from the time she was continuously stoned on her head and later through drowning. His Honour Sevua, J. imposed a sentence of life imprisonment instead of the maximum death penalty because the State Prosecutor did not ask for the death penalty.

In The State –v- Tumu Luna (supra) the prisoner killed the deceased with a single shot from a homemade shotgun at point blank range even though the deceased pleaded with the prisoner that they were brothers and that the prisoner should leave him alone. The State Prosecutor requested the maximum death penalty but I imposed a sentence of life imprisonment as I considered that the case was not as bad as in Maditoro’s case.

Mr. N’dranoh further submitted that the maximum death penalty be not imposed because this was not a premeditated attack but one which ended as a result of a fight between the deceased’s group and the prisoner’s group. It was also not an ambush killing. The prisoner, he submitted, has a prior good character with no prior convictions.

In regard to his prior good record and lack of prior convictions, such factors to my mind lose their significance in the face of a very serious crime as wilful murder. In my view, it is the state of mind of the attacker at the particular time that matters. Although Mr. N’dranoh conceded that violent offences such as wilful murder, murder, manslaughter and grievous bodily harm are prevalent in this province, he nevertheless submitted that because of the mitigating factors he has referred to, the maximum death penalty be not imposed in this case.

Mr. Kesno for the State has submitted that the maximum death penalty be imposed as the killing arose out of an assault earlier on a Councillor who was trying to stop a fight. Thus it demonstrated lack of respect for authority by the prisoner and his relatives. Mr. Kesno further submitted that there was no provocation in the non-legal sense and also that the circumstances of the killing was worse than in Tumu Luna’s case by reason of the body having been thrown into the Porgera River. Also the prisoner has expressed no remorse at all. He went on to submit relying on what Woods. J, said in Yapes Paege & Relya Tanda’s case at p.66 regarding the Court’s discretion under s.19 of the Criminal Code that such discretion be exercised with caution. His Honour said:

"Of course, Parliament has also said that the Court can act under s.19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s.299 is not mandatory. There is some discretion. However, this discretion under s.19 cannot be an automatic moderation of the law. The application of s.19 must require appropriate circumstances, but it cannot mean there is a very wide discretion with the range of one year imprisonment to life imprisonment to death. Surely, if there were this automatic wide range, this would have been included in s.299 itself. By putting it in s.19 it suggests something special."

Hence Mr. Kesno submitted that the sentence imposed should be one that can act as a deterrent bearing in mind a person’s right to life as guaranteed by the Constitution and the lack of respect for the rule of law and sanctity of life that is present in this part of the country.

In the present case, whilst I appreciate the sentiments expressed by Woods, J. in The State –v- Yapes Paege & Relya Tanda (supra) in favour of the death penalty and the forceful submissions of Mr. Kesno along the lines proposed by Woods, J., I am satisfied that the mitigating factors put to me by Defence Counsel Mr. N’dranoh in the context of the circumstances of this particular case do not bring it into the "worst type" wilful murder category. This case, in my view is also not as bad as in Maditoro’s case. There was also a fight prior to the killing so there was provocation in the non-legal sense. It was also unplanned and that it was not an ambush situation. So the maximum death penalty is inappropriate in this case.

I am however, concerned about the lack of respect for the sanctity of human life and the prevalence of attacks on human beings with guns, axes and bush knives in this province let alone this region of our country. The majority of cases on the crimes list in the National Court in Wabag are homicide cases such as wilful murder, murder and manslaughter as well grievous bodily harm and attempted murder which involve violent attacks on another person with dangerous weapons. I consider that the sentence I impose should be one that would act as a deterrent to others.

Therefore the sentence I consider appropriate in all the circumstances of this case is imprisonment in hard labour for life which I so impose on this prisoner.

As I said in Tumu Luna’s case (supra), I would not hesitate to impose the death penalty in this province in an appropriate case in future.
__________________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor