The State v Kepak Langa (2003) N2462

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 26 September 2003
• Citation: (2003) N2462
• Court: National Court
• Year: 2003
• Judgement Number: N2462

Full Title: The State v Kepak Langa (2003) N2462

National Court: Jalina J

Judgment Delivered: 26 September 2003

N2462

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 300 of 2003

THE STATE

-v-

KEPAK LANGA

Wabag : Jalina J

2003 : 26th September

Criminal Law – Particular offences – Wilful murder – Sentence – Deceased chopped several times on forehead with bush knives and axes – Conviction following trial – Deceased killed in ambush attack – Whether this wilful murder amongst worst category of wilful murders – Wilful murder through ambush attack within ambit of worst type wilful murder cases – Wilful murder and other homicide cases prevalent – Need for deterrence - Maximum penalty of death appropriate – Criminal Code s.299(2).

Papua New Guinea cases cited:

Goli Golu – v- The State [1979] PNGLR 653

Avia Aihi –v- The State (No.3) [1982] PNGLR 92.

Ure Hane –v- The State [1984] PNGLR 105.

The State –v- The Yapes Paege & Relya Tanda [1994] PNGLR 65.

The State –v- Arua Maraga Hariki, An unreported National Court Judgement N2332 dated Februrary 2003.

The State –v- Tumu Luna, An unreported judgment N2205 of the National Court in Wabag and dated 20th May 2002.

The State –v- Kiko Ipai, An unreported National Court judgment N2268 dated 19th June 2002.

The State –v- Sole Nare, an unreported National Court judgment in Cr 148/02 dated 25th May 2001.

The State –v- Madiroto [1997] PNGLR 95.

The State –v- Alois Erebebe and anor An unreported National Court judgement in Goroka in September 2003

Counsel:

S. Kesno for the State

P. N’dranoh for the Prisoner

26th September 2003

JALINA J: This prisoner was charged with wilfully murdering one John Daniel at Imi Village, in the Enga Province on 18th November 2002. The deceased was chopped several times on the head by the prisoner and others in an ambush attack on a group of people the deceased was travelling with.

As the nature of the injuries sustained by the deceased is relevant on sentence I summarise the Medical Report of Dr. Jeffrey Tore below::

“FINDINGS:

External – A young highlands male of 28 years, lying dead on the trolley. Had multiple lacerations to the face. Blood all over the face and head.

· Forehead: Laceration x 3

· Left side laceration measured about 17 cm in length and about 2 cm in width. The wound extended up to the scalp. The frontal bone was fractured (broken), involving brain tissues which were seen lying outside the wound.

RIGHT FOREHEAD:

Laceration x 2

One measured about 10 cm in length and 2 cm in width. The frontal bone was broken (fractured). Brain tissue could also be seen through the wound.

The other one measured about 4 cm in length and 1 cm in width.

There was a laceration on the nose also. The laceration measured about 6 cm in length and 2 cm in width. The nasal bone was fractured (broken). The left maxillary bone was also fractured and the base of the brain could be seen through the fractured bones.

BRAIN

Left Hemisphere lacerated more on the frontal area.”

The cause of death was found to be due to traumatic injury to the head.

The prisoner had raised a defence of alibi whereby in both his record of interview with the police as well as in his oral evidence, he said that he was at Sangurap Village in Wabag with his elder brother Ikio Langa and Village Court Magistrate Wasaka Napali on the day in question. The Court however, found the State to have successfully negativied his defence and convicted him of the offence charged. He now appears before me for sentence.

The maximum penalty under s.299 (2) of the Criminal Code Act for the offence of wilful murder used to be life imprisonment but Parliament amended Subsection (2) and replaced life imprisonment with the death penalty.

It is well settled in this jurisdiction that the maximum penalty should be reserved for the most serious instances of the offence. In other words, the maximum penalty should be imposed only in cases properly categorized as “worst type” cases (see Goli Golu – v- The State [1979] PNGLR 653, Avia Aihi –v- The State (No. 3) [1982] PNGLR 92 and Ure Hane –v- The State [1987] PNGLR 105.

The state prosecutor Mr. Kesno has submitted that the maximum death penalty be imposed in this case because of a number of aggravating factors which brings it within the ambit of “worst category” or worst type” wilful murder cases. The aggravating factors he submitted were:

(1) Cold blooded ambush attack on a father with his three children and two other relatives.

(2) This was a payback killing by the prisoner and the deceased’s enemy tribe the Diupin upon the deceased and his family members from the Kandaonkin tribe.

(3) The intention was to kill as many persons as possible. This was evidenced by;

(a) the attempted shooting of Pastor Daniel Napu by Wanpis Neo. The intention failed because the gun failed to fire.

(b) The shooting of Lasson Daniel with a home made gun by the prisoner. This was an attempted murder. The gun pellets struck Lasson Daniel on his left shoulder. If Larson had been shot in the chest instead of the left shoulder he could have also been killed.

(1) There were multiple injuries to the deceased’s head and face. According to the post mortem report there were three lacerations to the forehead and one to the nose. The skull was fractured resulting in brain tissues lying outside the wounds.

He further submitted that the death penalty should be imposed as a general deterrence to other would be offenders in Enga Province. The right to life was guaranteed under Section 35 of the Constitution however in this province there appeared to be a lack of respect for the sanctity of life. On top of that attitude was the lack of respect for the rule of law. This wilful murder was committed in an area that has experienced tribal fights with modern weapons on a large scale resulting in widespread destruction of properties and loss of lives. This killing related to that tribal fight. This killing showed that the value of human life in Enga appeared to be cheap. He referred to the comments of Woods, J. (as he then was) in The State –v- Yapes Paege & Relya Tanda [1994] PNGLR 65 which involved an ambush killing in the Enga Province where His Honor said at page 68:

“The circumstance of this case and of so many others the Court has seen over the years suggests a very casual attitude to life. There are many cases of the deliberate setting out in gangs to kill someone from an enemy line or to ambush someone”

That case, Mr. Kesno submitted, was decided 9 years ago. Unfortunately Enga has not changed much. These types of killing were still continuing, even taking place in Wabag Town, the administrative capital of the province. Similar concerns were echoed in the case of The State –v- Arua Maraga Hariki (Unreported National Court judgement N2332 of 3 February 2003) by Salika J. In that case the prisoner was convicted of the wilful murder of two persons. For the first count the prisoner was sentenced to life imprisonment and for the second count the maximum penalty of death was imposed. He referred to pages 4 and 5 of his judgment where His Honour said:

“Over the years I have tried numerous cases of murder. It appears to me that killings are becoming more daring without any fear and respect for the sanctity of life. Life has become so cheap in this country to live. Exposure to Christianity and education has had little impact in some communities in PNG. Tribal fighting, payback killing and ethnic clashes are not unusual occurrences.

These types of killing must stop. The Courts have been trying to stop these types of killing through passing of higher sentence but imposing higher sentences has not achieved much. It is time to consider the killing in this case to be worthy of a death sentence.”

Mr. Kesno went on and submitted that the concerns of Salika J. in Arua Hariki’s case were applicable to the Enga province. Ambush killings and pay back killings by a gang of people were becoming a common occurrence here. Despite exposure to Christianity and civilization for over half a century, ambush and pay back killings are still happening. Lack of sophistication in this day and age should no longer be an excuse. General deterrence should be of paramount consideration. The imposition of the death penalty would send a strong warning to the people...