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State v Korken [2021] PGNC 173; N8973 (21 July 2021)

N8973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1298 OF 2019

THE STATE

v

ERWIN KORKEN

Minj: Salika CJ
2021: 20^th & 21^st July

PRACTICE AND PROCEDURE – CRIMINAL LAW – Charge of Murder – Convicted after a trial – What is the appropriate sentence? – 25 years imprisonment.

Cases Cited:

Goli Golu v The State (1979) PNGLR

Manu Kovi v The State (2005) SC 789

Counsel:

Mr F Popeu for the State.
Mr L Siminji for the Prisoner.

SENTENCE

21^st July, 2021

1. SALIKA CJ: INTRODUCTION: The prisoner was charged with wilful murder but was convicted on one count of murder under s. 359 of the Criminal Code Act (CCA) after a short trial.
   
2. The following facts were read to the prisoner on arraignment:
   

On an unknown date, some 10 days or so before the 12^th of April 2019 in the night, the accused Erwin Korken was at his house at KAWIL HEALTH CENTRE at Tombil, Minj with wife and 2 small children, the eldest a girl of about 6 years or 7 years old at that time.

The accused had been away at Porgera for about a year and returned and formed the view that the wife was having an affair with another man and they argued.

In the course of their argument, the accused used an axe and injured the deceased on her head causing her to run away to her brother Frank’s house. Frank at that time was in Port Moresby and the deceased stayed with his wife until the 11^th of April 2019.

On the night, the 11^th of April 2019, the accused went over to his inlaws house and took his wife the deceased back to the house.

In the course of the night and into the early hours of the 12^th of April 2019, the accused and his wife argued and the accused kept assaulting the deceased and used an axe to inflict cuts to various parts of her body including her head and her limbs.

In the morning of the 12^th of April 2019, neighbors assisted and took her to the Kudjip Hospital but attempts by medical officers to assist her failed and she died.

A Medical Post Mortem Examination conducted on the body of the deceased showed she suffered multiple lacerations and deep wounds to her head and to her upper limbs and she died of severe head injuries with inter cranial heamorrhaege and haematoma.

State alleged the accused was responsible for causing her death when he cut her with the axe inflicting wounds on her body resulting in her death and when he did this he had the intention to cause her death.

His actions contradicts Section 300 (1)(a) of the Criminal Code Act Chapter 262.

3. The charge was read to the accused and he denied the charge. The State Prosecutor then tendered into evidence by consent the following documents:
   
   1. The Record of Interview dated 24 October 2019 (Pidgin) - Exhibit A 1.
      
   2. The same Record of interview in English - Exhibit A2.
      
   100. (i) The Post Mortem Report dated 18 April 2019 by Dr John Wera;
        

(ii) The Certificate of Death dated 18 April 2019 by Dr John Wera; and

(iii) Affidavit of Dr John Wera dated 18 April 2019, all marked as Exhibit B.

4. The State then closed its case.
   
5. The Defence then went onto evidence and called the prisoner to give evidence.
   
6. The Prisoner gave evidence on his own behalf. He said he had been working in Porgera for a year and when he came back he said his wife’s attitude had changed and said he heard his wife was having an affair and so he suspected his wife having an affair with another man. He said he talked to his wife about it and said she confessed to his suspicion. There is no one to corroborate the prisoner’s story on this aspect. His wife cannot come out of the grave to either confirm or deny the confession as alleged by her husband. He said he argued with his wife about that and he hit his wife on the head causing her to run away to her brother’s house. She stayed in her brother’s house until the 11 April 2019 when the prisoner went and got her because he said the last baby girl was crying a lot.
   
7. After the victim and her husband arrived at their house, his wife grabbed his testicles and he was struggling and in the event of him struggling and he throwing his arms about in pain and he felt the axe handle, got it and hit her hands and on her feet to make her release him but she hung tight. So he turned the axe to the head side and cut her on her hands and feet making her to release him.
   
8. The State relied on the questions and answers in question 25 of the Record of Interview and the Post Mortem Report. This is what he said and I recite the answers for a full and better understanding of the matter:
   
9. The Autopsy or Post Mortem Report dated 18 April 2019 records the following in relation to the Death of Grace Aine Jonah:

External Examination

Deep lacerations to the head around the parietal region of head with skull expose. Also multiple head lacerations to the temporal region and occipital region of head.
Multiple deep wounds and laceration to both upper limbs.

Conclusion.

The deceased died of severe head injuries with intra-cranial haemorrhage and haematoma.

10. The answers to questions 25 of the Record of Interview and the prisoner’s evidence in Court and the Autopsy Report did not add up or reconcile. How did the victim Grace Aine Jonah get the skull fractures to her skull? No other person was in a fight with Grace but the accused. The only reasonable inference open to the Court to infer is that the prisoner inflicted them. I found him guilty on inference from his answers in his Record of Interview and the Autopsy Report.
    

ISSUE

11. The issue is for the Court to consider and impose the appropriate sentence.
    

THE LAW

12. The maximum penalty under s. 300 (1) (a) of the CCA is life imprisonment subject to s. 19 of the CCA. Under s. 19 of the CCA, the Court has a wide discretion to impose a lighter sentence than the prescribed maximum. The maximum sentences are usually reserved for the worst type of murder cases. In this case, the injuries that caused the death of the victim are quite severe and serious. See Goli Golu v The State (1979) PNGLR.
    
13. The Supreme Court in Manu Kovi v The State (2005) SC 789 case places this offence in the third category, attracting a sentence of 20 to 30 years. More-over earlier today, I sentenced Sent Koip to 30 years imprisonment for murder. He fired a pistol discharging a bullet that killed Stenic Poiya. I also sentenced Meli John for 16 years again for murder. She stabbed a woman who she thought her husband was having an affair with.
    

ALLOCUTUS STATEMENT

14. He apologized to the Court for the crime he committed. He said from his heart that he is sorry for what he did and said he had 4 children and their mother is now gone. He said he has paid some compensation of K50,000 cash, 55 pigs, one bull and 4 goats. He said he needed to repay the 55 pigs and for that reason needed to be given a non-custodial sentence.
    

PERSONAL PARTICULARS

15. The prisoner is 36 years old and is from Tombil Anglimp, South Waghi, Jiwaka Province. He was married until this incident and is now a widower. He has 4 children; 2 from the first marriage and 2 from the now deceased wife. He is of the SDA faith. He is a nursing officer by profession, working to save lives of people and is relatively in good health. While he is of the SDA faith, he was free to smoke cigarettes, chew betelnut and consume alcohol but only quit after he started having health issues.
    

MITIGATING FACTORS

16. The prisoner is a first time offender.
    

AGGRAVATING FACTORS

17. He used an axe to fracture his wife’s skull. The deceased had multiple head injuries and multiple injuries on both upper limbs and main blood vessels of upper arms were severed.
    

SENTENCE

18. Murder is a serious crime of violence. It involves taking the life of a human being. Human lives are and should be spared at all and any cost. I have dealt with a number of murder cases in the course of this circuit and some of the murders are gruesome and carelessly done. There does not appear to be any respect shown for the sanctity of life. It is almost like as if people have licence to kill whatever the circumstances.
    
19. I do not quite understand when people intend to cause some serious injury to others and those others die as a result, and yet ask to be put on probation or good behaviour bond. The language of Murder is imprisonment if one is convicted. There must be an expectation and it should go without saying, that imprisonment is also automatic. The only question is for how long? One must not expect to be given a good behavior bond or be placed on probation. Murder is not an appropriate charge to place a convicted murderer on probation. Compensation of K50,000 or K100,000 or K1 million cannot and will not release you from a custodial sentence or term.
    
20. When you were beating the woman you say you love her but cause her death causing multiple fractures of the skull, did it even occur to you that she could die? You had strong intent to cause her serious grievous bodily harm. It appears you did not even think of that. You probably also did not think that you could go to jail for a long time. You probably did not even think of your future and welfare and future of your children.
    
21. A life is unnecessarily lost. Your children have lost a mother. The relatives of the woman have lost a loved one.
    
22. Considering all the circumstances of the offence including your statement in allocutus, mitigating and aggravating factors and the PSR, I sentence you to 25 years imprisonment in hard labour. Custody time of 2 years, 3 months and 8 days is taken off. Balance to serve is 22 years 8 months 2 weeks and 6 days. Bail of K3,000 is to be refunded to you.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused