John Elipa Kalabus v The State [1988] PNGLR 193

• Jurisdiction: Papua New Guinea
• Judge: Woods J:
• Judgment Date: 27 October 1988
• Citation: [1988] PNGLR 193
• Court: Supreme Court
• Year: 1988
• Judgement Number: SC355

Full Title: John Elipa Kalabus v The State [1988] PNGLR 193

Supreme Court: Kidu CJ, Kapi DCJ, Woods J

Judgment Delivered: 27 October 1988

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.

Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume (1981) SC201, Public Prosecutor v Tom Ake [1978] PNGLR 469, The State v John Kalabus and Aita Sanangkepe [1977] PNGLR 87 and Ure Hane v The State [1984] PNGLR 105 referred to

Appeal Against Sentence

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

___________________________

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 s300(1)(b) of the Criminal Code (Ch262):

"(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 s213 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...