Kesino Apo v The State [1988] PNGLR 182

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 15 September 1988
• Citation: [1988] PNGLR 182
• Court: Supreme Court
• Year: 1988
• Judgement Number: SC353

Full Title: Kesino Apo v The State [1988] PNGLR 182

Supreme Court: Kapi DCJ, Woods J, Los J

Judgment Delivered: 15 September 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KESINO APO

V

THE STATE

Waigani

Kapi DCJ Woods Los JJ

31 May 1988

15 September 1988

CRIMINAL LAW — Sentence — Relevant considerations — Intoxication — Not mitigating factor.

CRIMINAL LAW — Sentence — Manslaughter — Relevant considerations — Victim close relative — Traditional punitive aspect of killing relative — Relevant to mitigation.

On appeal against sentence on a conviction for manslaughter:

Held

(1) The effect of intoxication at the time of the commission of the offence is not a matter relevant to mitigation on sentence.

(2) The traditional self-punitive aspects relating to the killing of a relative are matters which may be taken into account on sentencing.

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

Joseph Maino v The State [1977] PNGLR 404.

Norris v The State [1979] PNGLR 605.

Public Prosecutor v Tardrew [1986] PNGLR 91.

R v Bradley (1979) 70 Cr App R 200; (1980) 2 Cr App R (S) 12.

R v Spence (1982) 4 Cr App R (S) 175.

Appeal against Sentence

This was an appeal against a sentence of six years imprisonment on conviction for manslaughter of a relative.

Counsel

S Lupulrea, for the appellant.

V Noka, for the respondent/State.

Cur adv vult

15 September 1988

KAPI DCJ: The facts of the case are set out in the judgments of Woods and Los JJ. There are two matters of principle I wish to discuss.

INTOXICATION

The relevance of intoxication goes to the question of culpability. The rationale is that if an offender offends while under the influence of alcohol, his self-control is affected and therefore his culpability may be diminished. There is no clear statement of the Supreme Court on this question. It would appear that it has been treated as a mitigating factor as in Joseph Maino v The State [1977] PNGLR 404. In the National Court, different judges have rejected intoxication as a mitigating factor.

In England, intoxication is not a mitigating factor in cases in which the offender was risking a breach of the law by being under the effects of alcohol, as in the case of dangerous driving. In practice, that is the position in our jurisdiction and should be maintained.

However, apart from this, the position is not clear with other offences. In England, the Court of Appeal has not made the position clear either. The court in R v Bradley (1980) 2 Cr App R 12 rejects the influence of alcohol as a reason for reducing sentence. However, in R v Spence (1982) 4 Cr App R 175 the sentence was influenced by the presence of alcohol. These cases are not included in the reports. I am therefore not assisted by any reasons for either view.

I hold the opinion that anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not to be taken as a mitigating factor.

It may have some bearing if considered together with other circumstances, such as provocation in fact for the purposes of sentence. In the end result, the influence of alcohol cannot be a significant factor in mitigation of sentence.

KILLING OF A RELATIVE

Whether a person killed is a relative or an enemy has special significance in Papua New Guinea. The notion of payback is still practiced in many parts of the Highlands. The significance is that where a person other than a relative is killed, the victim's relatives would pay back by seeking to kill a member of the offender's family. This brings upon the killer and his line the risk of tribal war, death or destruction of property. There are also high compensation demands which would involve the whole clan.

Compared to this is the killing of a relative which can rarely result in such tribal warfare and animosity. In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper....