The State v Kenneth Baupo and Fabian Girida (1989) N795

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 13 December 1989
• Citation: (1989) N795
• Court: National Court
• Year: 1989
• Judgement Number: N795

Full Title: The State v Kenneth Baupo and Fabian Girida (1989) N795

National Court: Hinchliffe J

Judgment Delivered: 13 December 1989

N795

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR: 1117 OF 1989)

THE STATE

V

KENNETH BAUPO AND FABIAN GIRIDA

Popondetta

Hinchliffe J

13 December 1989

CRIMINAL LAW — Sentence — Murder — Life Imprisonment — Factors considered — Deceased killed when a robbery was occurring — Category — Robbery of the worst type — Accused persons fully armed — No remorse shown after the killing — Further offences committed same night on the premises — Community interests — The need to protect members of the community from wilful destruction of human life.

Facts:

The first accused was found guilty while the second accused pleaded guilty both to the charge of murder. The deceased a 63 year old man was stabbed with a knife while a robbery was taking place at night in the house he was living in. The two accused and three others heavily armed with a shotgun, spear guns and knives had gone to the premises with the intention to rob. The group subsequently stole a motor vehicle on the same premises and took off with the stolen money.

Held:

1. Both accused persons were sentenced to life imprisonment with hard labour.

2. In imposing the sentence the following factors were considered.

(a) Deceased, an old man was innocent and had not provoked the attack.

(b) Deceased was killed during the occurence of a robbery.

(c) A robbery in a house, as was in this case, is of the worst type. (Gimble v. The State Unreported S.C. 369).

(d) The group was fully armed with a shotgun, spear guns and knives.

(e) No remorse was shown after the killing of the deceased.

(f) The other offences were committed on the same night on the premises during and after the killing.

(g) People in the community should be protected from the wilful destruction of human life and without fear when going about their own business.

Cases Cited:

Gimble v. The State Unreported S.C. 369.

Sentence:

On convictions for murder the following reasons for sentence were given.

Counsel:

F. Kuvi, for the State.

D. Koiget, for the accused.

HINCHLIFFE J: Kenneth Baupo, you have been found guilty and Fabian Girida you have pleaded guilty that on the 13th day of December, 1988 you murdered one Athol Herbert Carrington Smith of Sydney, Australia. The maximum penalty for this offence is life imprisonment.

The brief facts of this case are that on the 13th of December last year you and three others went to the Awala Martyrs Plantation with the intention to rob. When you arrived at the house, three went inside including the two of you. The Manager of the plantation, Douglas Smith was outside asleep on the verandah, it was night time. His sister Susan Smith and uncle (the deceased) who were visiting were also asleep inside.

The deceased was a man of about 63 years of age. You went to the house armed with a shotgun, spear guns and knives. Fabian Girida pointed a shotgun at the head of Douglas Smith and ordered him to open the safe. Soon after that the deceased man heard some noise and came out to see what was going on. He was carrying a baseball bat. Susan Smith stayed in her room.

When the deceased came outside, you Kenneth Baupo plunged the knife into his right chest. Athol Herbert Carrington Smith fell down and died instantly. Douglas Smith tried to help him but was threatened by you Fabian Girida not to assist. Douglas Smith was then ordered to get the money out of the safe.

After the cash boxes were removed, you all went down to Douglas Smith's car. Douglas Smith was ordered to start the car which he did. He got out of the car and you got into the car. The shotgun was fired at Douglas Smith but the shot missed him. You all then drove off in a stolen car with Fabian Girida driving it.

You then sometime later bought beer at the store and sat on the beach and got drunk. They are the brief facts relating to this case.

First of all, in relation to Kenneth Baupo. Your lawyer has asked me to consider several matters when assessing penalty. First that you have no prior convictions. Normally prior convictions are taken into account but with an offence as serious as this one, the fact that you have no prior convictions loses some of its significance. You have a good work history and a reasonably good education but that of course could be held against you.

I'm told by your lawyer that you have an oil palm block and a cocoa block and you also have a trade store and you're only twenty years of age. I say that that could be held against you because you had no reason whatsoever to do what you did. Clearly you had money but you were greedy and you wanted more.

You are a young person and I've been asked to consider that you are about 20 or may be a few years older. I do take that into account, but, once again I say that the seriousness of this charge outweighs your age. I also take into account that you didn't go to the Awala Martyrs Plantation intending to kill the deceased or any one else and I also note what...