N4783

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.922 of 2011

BETWEEN:

THE STATE

AND:

BENJAMIN WAKUPA
Prisoner

Mt. Hagen & Minj: David, J
2012: 26 July, 16 August & 6 September

CRIMINAL LAW – sentence – murder – juvenile offender - killing of a young female aged between 12 and 14 years and 6 months with an axe immediately after committing the offence of rape or sexual penetration of a child in her house – more than 15 severe axe wounds inflicted on the deceased's head, face and back - torn hymen - killing was to conceal earlier incident of rape or sexual penetration of a child – alleged use of illicit drugs by prisoner at time of offence – factors in aggravation significantly outnumber and outweigh factors in mitigation – case falling within worst category of offence - sentence not to be crushing – sentence of 25 years – custodial sentence – Criminal Code, Sections 28, 29 and 300 (1)(a). 

Cases cited:
Passingan v Beaton (1971-72) PNGLR 206
Regina v Allan Evi (1975) PNGLR 30
Paulus Mandatititip v The State [1978] PNGLR 128
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258
Avia Aihi v The State (No 3) [1982] PNGLR 92
Kuri Willie v The State (1987) PNGLR 298
The State v Kenneth Baupo and Fabian Girida (1989) N795
Lawrence Simbe v The State [1994] PNGLR 38
Aloises Peter Irobo Kovei v The State (2001) SC676
The State v Jonathan Sokai (2002) N2334
Simon Kama v The State (2004) SC740
Manu Kovi v The State (2005) SC789
The State v Bernard Hagei (2005) N2913
The State v Clarence Tema Mongi (2007) N3259

Counsel

Mr. Joe Kesan, for the State
Mr. Philip L. Kapi, for the offender

SENTENCE

6 September 2012

1.	DAVID J: The prisoner was charged with one count of murder contrary to Section 300 (1)(a) of the Criminal Code, the State alleging that on 2 December 2010 at Elkina village, Mul Baiyer District, Western Highlands Province in Papua New Guinea, the prisoner killed one, Moreen Noki (the deceased) in circumstances where he intended to do grievous bodily harm to the deceased. On 26 July 2012, I convicted the prisoner upon pleading guilty.

2.	After administering the allocutus, I directed that a pre-sentence report be compiled and filed by the Probation Service, Mt. Hagen branch at the request of the prisoner made through his counsel, Mr. Kapi by 16 August 2012. The report was duly compiled as directed and I thank Ms. Songoa, Probation Officer for her assistance. I heard submissions on sentence while on circuit in Minj last month and reserved to pass sentence on the prisoner today. This is the sentence of the Court. 

3.	The prisoner appears before me for sentence from custody.

4.	The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for life.

5.	 Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of murder: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

6.	It is also settled law that each case must be decided on its merits: see Lawrence Simbe v The State [1994] PNGLR 38.

7.	The short facts presented to the Court for the purposes of arraigning the prisoner were these. In the early hours of 2 December 2010 between 1:00 and 2:00 o'clock, the prisoner was at Elkina village, Mul Baiyer District in the Western Highlands Province. That night, the deceased, a young girl aged about 12 years was sleeping in her house in the village alone. Her parents were away. The prisoner knowing that the deceased was alone went to her house, broke down the door and entered the house. He grabbed the deceased and forcefully had sexual intercourse with her. The deceased struggled and fought with the prisoner. She managed to free herself and run out of the house and started shouting for help. Realising that the deceased was trying to alert people, the prisoner who was armed with an axe at the time chased the deceased and chopped her all over her head and back. The deceased died as a direct consequence of the injuries she sustained from the attack. 

8.	The medical report comprising the affidavit of Dr. Michael Dokup, Director Medical Services of the Mt. Hagen General Hospital sworn on 15 December 2010, the post mortem report dated 1 December 2010 and the medical certificate of death issued on 6 December 2010 confirms that the deceased who was estimated to be aged about 12 years was brought to the Mt. Hagen General Hospital on 2 December 2010 after her death and her body was the subject of a post mortem examination conducted at the hospital morgue on the same day at about 12:00 noon. The post mortem on the deceased revealed that she was sexually abused and sustained multiple axe wounds to her face, head and back and she died from these injuries. The injuries the deceased suffered were:

(a)	as to the head, a criss-cross wound at the occiput area of the head fracturing the skull with spillage of brain matter and the scalp was also injured with the skin opened and bone exposed.

(b)	as to the face, more than fifteen deep facial lacerations with depths ranging from 2 cm to 4 cm exposing facial and muscle tissue.

(c)	as to the back, a wound measuring 10 cm deep, 7 cm long and 4 cm wide was inflicted exposing the shoulder blade, fractured posterior ribs and injury to the right lung.

(d)	as to the perineum, a torn hymen. 

9.	On his allocutus, the prisoner said sorry to God, the Court, his family and tribe for committing the offence. He said customary compensation comprising pigs and cash, the total value of which he did not know, has already been paid to the family and relatives of the deceased. 

10.	The pre-sentence report, which I have considered, does not speak favourably of the prisoner. It was suggested in the report that the prisoner might be a heavy user of marijuana because of the way he conducted himself and his responses to questions posed to him during the interview with Ms. Songoa. The report recommends that a custodial sentence may be appropriate.

11.	The prisoner is from Elkina village, Mul Baiyer District in the Western Highlands Province, single and subsistence farmer when he committed the offence. His parents are deceased. He has received Grade 3 formal education. There are six siblings in the family, four males and two females and he is the third born. The prisoner was apprehended on 2 December 2010 and he has been in custody since that time. That works out to be a period of 1 year, 9 months and 4 days. 

12.	At the committal hearing, Presiding Magistrate, Ms. Betty Jacobs determined the age of the prisoner to be 15 years invoking Section 63 of the Evidence Act. That determination is contained in the notice of committal dated 7 September 2011. Contrary to that determination, Mr. Kapi of counsel for the prisoner submitted that the prisoner was aged 17 years at the time of the offence and was now aged 19 years. Apart from the notice of committal, the rest of the depositions in particular the record of interview conducted on 2 December 2010 and the antecedent report do not indicate the age or date of birth of the prisoner. I have seen the prisoner when taking the plea on 26 July 2012 and when hearing parties' submissions on sentence on 16 August 2012. My observation of the prisoner on both occasions convince me and I make a further determination under Section 63 of the Evidence Act and a finding of fact that the prisoner is currently less than 18 years old, but more than 16 years. This is consistent with the determination of Her Worship that the prisoner was aged 15 years when she committed him to stand trial in the National Court last September. 

13.	The offender has no prior convictions. 

14.	In mitigation, Mr. Kapi submitted that; the prisoner pleaded guilty; the prisoner expressed genuine remorse; the prisoner was a juvenile offender; the prisoner was a first offender; and that compensation comprising K6,000.00 cash and fifteen pigs was paid to the relatives of the deceased. 

15.	Counsel further submitted that the pre-sentence report suggests that the prisoner may have been taking illicit drugs at the time of the offence and this might have been a factor in causing him to commit the offence. 

16.	Mr. Kapi submitted that whilst the present case had some elements of categories 3 and 4 of the guidelines in Manu Kovi v The State (2005) SC789 as was demonstrated by the viciousness and the brutal manner in which the killing occurred and that the offence was committed in the night, a sentence within the range recommended within category 2 in the exercise of the Court's discretion should be considered. Counsel urged the Court to impose a sentence between 16 and 17 years.

17.	Mr. Kesan for the State submitted that aggravating factors in the present case are; that a young life was taken prematurely; multiple wounds were inflicted upon the head and back of the deceased; an axe was used; the deceased was sexually assaulted before being killed; an innocent young girl sleeping alone in her house was sexually assaulted in her own house against her own will; and the prisoner entered the deceased's house by force. Counsel submitted that this was a very serious case which had all elements of category 4 of the Manu Kovi guidelines present therefore a sentence from 25 years to life imprisonment was appropriate. 

18.	Mr. Kesan invited me to consider The State v Kenneth Baupo and Fabian Girida (1989) N795, The State v Jonathan Sokai (2002) N2334 and Simon Kama v The State (2004) SC740 which I have. 

19.	In Kenneth Baupo and Fabian Girida, the two prisoners were convicted of the murder of a 63 year old man with a knife in the house he was residing in at a plantation during the course of a robbery taking place at night, one after a trial and the other on a plea of guilty. The prisoners and three others had gone to the house armed with a shotgun, spear guns and knives with the intention to rob. The deceased heard some noise and armed with a baseball bat went out onto the verandah to investigate. As soon as he stepped outside, one of the prisoners plunged a knife into his right chest. He fell down and died instantly. A motor vehicle on the premises and some money kept in a safe were stolen. Both prisoners were sentenced to life imprisonment in hard labour. 

20.	In Jonathan Sokai, the prisoner was convicted after a trial of murdering an expatriate who was employed by the University of Technology at Lae as a Professor in Architecture. The prisoner, who was the deceased's "haus boi" and aged about 45 years, had been working and living with the deceased for about fifteen years and the deceased looked after him as his son. The prisoner attacked the deceased with a blunt object, possibly a coconut scraper and boots, causing head and facial injuries from which the deceased died. The Court held that the case fell within the worst category of murder cases and imposed a sentence of life imprisonment. 
 
21. In Simon Kama, the prisoner was convicted on a plea of guilty for shooting dead the driver of a motor vehicle on a highway in the course of conducting a planned armed robbery with the use of three firearms. The motor vehicle without the deceased in control naturally went out of control and ended up in a drain. Passengers jumped off and ran away in fear for their lives, but a female passenger was not so fortunate and held up as a result of which K50.00 was stolen from her. The prisoner was sentenced to 25 years imprisonment. He appealed his sentence claiming it was manifestly excessive. His co-offender was convicted after a trial and was sentenced to 15 years imprisonment. He asked that his sentence be reduced and be the same as his co-offender. The appeal was dismissed.

22.	The factors which I regard as mitigating the offence are; the prisoner acted alone; this was an isolated incident; the prisoner pleaded guilty; the prisoner was a juvenile offender; the prisoner was a first offender; the prisoner cooperated with the police and made early admissions in the record of interview; the prisoner's previous good record; compensation comprising K6,000.00 cash and fifteen pigs was paid to the relatives of the deceased; and the prisoner expressed genuine remorse. 

23.	The suggestion that the prisoner might have committed the offence whilst under the influence of illicit drugs therefore was unable to understand what he was doing or to control his actions has no legal basis where it was self-induced: see Sections 28 and 29 of the Code, Regina v Allan Evi (1975) PNGLR 30 and The State v Clarence Tema Mongi (2007) N3259. In any event, the depositions do not support the suggestion.

24.	The factors which I regard as aggravating are; the prisoner used a dangerous or offensive weapon in the form of an axe; some element of pre-planning was involved to use his axe in order to commit the offence of rape or sexual penetration of a child and to silence the deceased from telling others about her ordeal later; the attack on the deceased was vicious; the killing was brutal; there was a strong desire to do grievous bodily harm; more than 15 severe multiple wounds were inflicted on the deceased's head, face and back and her hymen was torn; the prisoner directly killed the deceased; the prisoner committed another serious offence of rape or sexual penetration of a child before killing the deceased; the prisoner broke and entered the deceased's house through the door despite it being securely fastened from the inside by a piece of timber and an iron rod; the prisoner committed the offence of rape or sexual penetration of a child in her own home while sleeping alone; these offences were committed in the night; an innocent and harmless life of a female child aged between 12 and 14 years and 6 months was prematurely terminated; there was a complete disregard for human life; the prisoner committed the offence in order to conceal the offence of rape or sexual penetration of a child he had earlier committed; and the offence is prevalent. 

25.	As can be seen above, the factors in aggravation significantly outnumber those in mitigation.

26.	I will apply the sentencing guidelines for murder cases recommended in Manu Kovi. 

27.	This is a case that has elements of; category 3 where a sentencing range between 20 and 30 years is recommended; and category 4 which recommends life imprisonment. 

28.	In considering an appropriate sentence, I have had regard to the following cases as well.

29.	In The State v Bernard Hagei (2005) N2913, the prisoner was convicted on a plea of guilty to one count of wilfully murdering a young female student after being raped in bushes near a village located on the outskirts of Kieta town where she had gone to get some food from her aunt contrary to Section 299 of the Code. During the course of the rape, the prisoner told the deceased not to tell anyone about the rape. After being raped and whilst the prisoner was zipping-up his trousers, the deceased managed to run away naked with her trousers in her possession and yelling back at him that she would report the incident to her parents and relatives. The prisoner gave chase and when he caught up with the deceased, he punched her on the back causing her to fall to the ground. Whilst lying face down, the prisoner grabbed a stick and hit the deceased four times on the back of her head causing immediate death. The prisoner hid the deceased under a rotten log and covered her with dead leaves and dirt and returned to his village. Her body was found later that fateful day by a woman collecting firewood. The prisoner was sentenced to life imprisonment. 

30.	In Aloises Peter Irobo Kovei v The State (2001) SC676, the appellant appealed against a sentence of life imprisonment following conviction after a trial for the murder of a young girl after she was abducted by a group of young men numbering about 8 to 10 which he was a part of and raped repeatedly in turns at several locations including in a church. In order to prevent the discovery of their illegal acts of abduction and rape, they killed the deceased by chopping her around the neck area and dumped her body in a drain. The Supreme Court held that the trial judge did not err when he found that the case fell within the worse type of murder cases and therefore dismissed the appeal and confirmed the sentence of life imprisonment. 

31.	In Clarence Tema Mongi, the prisoner was convicted after pleading guilty to a charge of wilfully murdering a 7 year old female contrary to Section 299 of the Code. The prisoner who had consumed marijuana came across the deceased as she was collecting galip nuts in the bush. He grabbed her and punched her on her head causing concussion and she lapsed into unconsciousness. When she came to, the prisoner punched her again on the head and then constricted or twisted her neck with his hands causing immediate death. He then unsuccessfully tried to penetrate her vagina with his penis, but proceeded to sodomize her after engaging in other indecent acts. The prisoner hid the deceased in a cave which was discovered later in the evening of that fateful day following a search. The prisoner was sentenced to death, the court finding that the particular circumstances of the killing were such that the imposition of the maximum penalty was warranted. 

32.	I think the facts of this case are a little closer to Bernard Hagei and Aloises Peter Irobo Kovei. However, I warn myself that Bernard Hagei was a wilful murder case and Aloises Peter Irobo Kovei is murder case committed by a gang which the prisoner there was a part of. 
33.	The aggravating factors not only significantly outnumber those in mitigation, but they also far outweigh the factors in mitigation. There were no extenuating circumstances. In fact, I consider that the mitigating factors have been rendered insignificant by the gravity of the offence. This case surely falls within the worst category of murder cases.

34.	What is the appropriate sentence for the prisoner considering that he is a juvenile offender? In Paulus Mandatititip v The State [1978] PNGLR 128, the Supreme Court observed that deterrent sentences are required where the offence is prevalent and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency. This legal proposition was affirmed by the Supreme Court in Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 and has since been followed in many decisions of the Supreme Court and the National Court. I am not aware of any Supreme Court decision advancing a contrary view.

35.	Are there any exceptional circumstances which call for leniency? I find no exceptional circumstances. 

36.	In considering an appropriate sentence for the prisoner, I take cognizance of the statement made by the pre-independence Supreme Court in Passingan v Beaton (1971-72) PNGLR 206 about sentencing of youthful offenders where it stated that in cases where a court deems it proper to imprison a young offender, the sentence should not be a crushing one. 

37.	It has also been suggested in the National Court decision of Kuri Willie v The State (1987) PNGLR 298, that where youthful offenders are to be sentenced, all alternatives should be investigated by courts before settling on imprisonment as a last resort.

38.	Notwithstanding these legal propositions, it is indeed an onerous task when trying to determine what sentence is just or appropriate for a juvenile offender particularly when trying to strike a balance between the main objective of imprisoning an offender which is rehabilitation as opposed to the likelihood of the offender becoming a hardened criminal while serving time for whatever length in prison. 

39.	I have considered the parties' submissions on penalty. The prisoner through his counsel proposes 16 to 17 years as appropriate whilst the State proposes a term of imprisonment between 25 years to imprisonment for life. Mr. Kapi in his reply submitted that if a sentence beyond 25 years were imposed, it would be tantamount to imposing a sentence of imprisonment of life. He concedes however that the killing in this case was vicious and brutal.

40.	I have considered imposing a sentence in excess of 25 years to imprisonment for life, but I think it would be crushing. I think the appropriate sentence for the prisoner taking into account all the circumstances of the case is 25 years imprisonment in hard labour. This sentence should hopefully prevent recidivism and to deter other like-minded persons in the community from engaging in such criminal conduct. The time spent on remand awaiting his trial and sentence which is a period of 1 year, 9 months and 4 days shall be deducted from the head sentence leaving 23 years, 2 months and 24 days (the remaining term) to serve. 

41.	The gravity of the offence calls for the remaining term to be served in custody. 

42.	Incarceration shall be at the Baisu Correctional Institution.

43.	A warrant of commitment shall issue forthwith to execute the sentence.

Sentenced accordingly.

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