The State v Lossy Karapus (2009) N3640

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 May 2009
• Citation: (2009) N3640
• Docket Number: CR NO 647 OF 2004
• Court: National Court
• Year: 2009
• Judgement Number: N3640

Full Title: CR NO 647 OF 2004; The State v Lossy Karapus (2009) N3640

National Court: Makail, J

Judgment Delivered: 22 May 2009

N3640

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 647 OF 2004

THE STATE

V

LOSSY KARAPUS

Wabag: Makail, J

2009: 12th & 22nd May

CRIMINAL LAW - Sentence - Manslaughter - Deceased adult female - Girl friend of offender’s husband - Death arose from domestic dispute setting - Multiple stab wounds to head, back and thigh - Use of kitchen knife - Instant death - Presence of very strong de facto provocation - Husband’s flirtatious affairs - Killing resulted in back lash - Sentence of 10 years imposed - Criminal Code - Sections 19 & 302.

Cases cited:

The State -v- Carol Alfred (2009) N3602

The State -v- Philipa Kawage: CR No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008)

The State -v- Anita Kelly: CR No 1167 of 2007 (Unnumbered & Unreported Judgment of 22nd April 2009)

The State -v- Kila Peter (2006) N 3018

The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)

The State -v- Lapa Irape: CR No 1063 of 2008 (Unnumbered & Unreported Judgment of 7th November 2008)

Counsel:

Mr. S Kesno, for the State

Mr. P Kumo, for the Offender

SENTENCE

22 May, 2009

1. MAKAIL J: On 12th May 2009, you appeared before the Court and pleaded guilty to a lesser charge of homicide offence, namely manslaughter where you unlawfully killed the deceased, one Pale Ilaiya, a young girl of 17 years between Kairik and Tipinini villages in Porgera on the afternoon of 15th December 2003. What you did is an offence contrary to section 302 of the Criminal Code.

2. The killing took place around 5 o’clock in the afternoon, when the deceased and another girl were walking along the road between Kairik and Tipinini villages and you passed them on the way. You went to your house and returned. You followed them and when you caught up with them, you stabbed the deceased with a kitchen knife. You stabbed her three times on her body. The first one was on her right side of the head, the second one on the right side of her back and the last one on her right thigh. She died instantly because of heavy loss of blood from the kitchen knife wounds and also a punctured right lung.

3. I administered allocutus to you. You told a long story about how and why you killed the deceased. In short, first, you are a first offender and this is the first time for you to stand before the Court. You acknowledge that you will be judged according to your actions today but you will also be judged by God Almighty one day for the same actions. You were once happily married to your husband and your husband had a paid job with Porgera Joint Venture. From the marriage, both of you have three children. He gave you his pay to pay for the basic daily needs for you and your three children. Your husband’s job required him to be away from home most of the time and you were burdened with the responsibility of bringing up the children including performing other domestic chores like raising of pigs and the making of gardens to supplement your daily diet and finances.

4. Then your husband decided to see another woman. He kept it a secret for sometime but your husband’s relatives witnessed his flirtatious affairs and reported them to you. You took the matter to the Village Court where your complaint against your husband and his girlfriend was heard and you were cautioned because you did not have “hard” evidence to prove their flirtatious activities. You were told to pay the deceased compensation for making baseless allegations against her and your husband which you did by paying her K100.00. Your husband assisted you with another K120.00, making a total of K220.00.

5. You thought it was the end of the matter and your husband would behave himself and remain faithful to you. Sadly though, it occurred again and this time, the deceased’s family members, especially her mother and step father publicly announced to you that your husband would take the deceased’s hand in marriage. You were not at all happy about this and took the matter back to the Village Court. You waited for three days and your husband and the deceased did not turn up. You gave up and returned home.

6. The public ridicule and humiliation did not stop there, as the deceased’s family members, especially her mother and step father continued their push for the deceased to marry your husband. Meanwhile your husband stopped giving you money from his pay. You had to work extra hard to support yourself and your children. One day your husband returned home and told you that he wanted to make up for the misery and pain he had caused to you by paying compensation to you and also to the deceased. But he never did. Things didn’t get any better for you as by now you gave birth to a fourth child and had an extra burden of taking care of three children and a baby. Your husband never gave you a helping hand.

7. That fateful day on 15th December 2003 was the climax of all the pain and misery that you had undergone. It was a rainy afternoon and you were just returning from a hard day’s work in the garden, exhausted and burdened with a heavy load of food (kaukau) and baby under an umbrella to hide from the pouring rain. The pain and miserable condition was also sparked by the deceased’s provocative indecent exposure of her lower body and derogatory remarks to the effect that you come and leak her private part. The remarks and the indecent exposure by the deceased followed an earlier comment by the deceased that she was going to your husband to get some food whereupon you rebuked her and warned her not to interfere with your marriage. You were furious and enraged by her remarks and provocative indecent exposure. You attacked her and she produced a kitchen knife to stab you but somehow you managed to wrench it from her hand and used it to stab her three times. She died instantly.

8. What you have described above is not an exceptional case. It is a common type of unlawful killing that happens everywhere in the country. It depicts a sorry state of affair in our societies as far as preservation of the sanctity of marriage is concern. It is a danger sign for this country and the Court must where possible help avert this disaster. You must be reminded that the offence you have committed carries a maximum penalty of life imprisonment under section 302 of the Criminal Code. But the Court has discretion under section 19 of the Criminal Code to reduce the sentence depending on the factual circumstances in each case like in your case. For that, you must be grateful.

9. Since my appointment as a judge of this Court in January 2008, I have dealt with a number of this kind of cases and I am beginning to wonder whether or not the National Court has done enough to curb killings in a domestic setting like in your case. This is because it appears that no matter how many cases of this nature are brought before the Court and a strong deterrent sentence is imposed on offenders, there are still a large number of such cases coming before the Court.

10. Having considered all the submissions made by your lawyer and the State prosecutor and taking the mitigating and aggravating factors present in your case, I am of the view that your case is similar to the cases of The State -v- Carol Alfred (2009) N3602, The State -v- Philipa Kawage: CR No 1386 of 2006 (Unnumbered & Unreported Judgment of 12th May 2008), The State -v- Anita Kelly: CR No 1167 of 2007 (Unnumbered & Unreported Judgment of 22nd April 2009) and The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008).

11. These cases arise from killings in domestic settings. Much of the mitigating factors like you have pleaded guilty to the commission of the offence, a first offender, expressed remorse, voluntarily surrendered to the police and co-operated with them during their investigations into the commission of the offence, presence of de facto provocation, history of domestic abuse, payment of customary compensation and character report of yourself were also present in the above cited cases. Then, there are circumstances of aggravation such as the prevalence of the offence, the use of weapons like bush knife or kitchen knife, the number of stab wounds, the pre planning of the killing, etc were also taken into account in the above cited cases to arrive at an appropriate sentence for each case.

11. A quick run down of these cases show that the sentences that I have imposed range between 9 and 13 years. For example, in the case of Carol Alfred (supra) handed down in Mendi during the last Court circuit in March 2009, I imposed 10 years imprisonment on the offender’s guilty plea for unlawfully killing her husband after an argument. There, the offender stabbed her late husband, a policeman with a kitchen knife after an argument. The husband had accused her of not preparing dinner for him that evening when he returned home. One of the compelling mitigating factors that persuaded me to impose a sentence of 10 years imprisonment is that, the offender was a victim of domestic violence and wife beating at the hands of her late husband for a long time, a fact that the State conceded. The other reason is that, the killing was accidental as the offender stabbed her late husband on his left upper thigh when they wrestled...