The State and Benjamin Wakupa (Prisoner) (2012) N4783

• Jurisdiction: Papua New Guinea
• Date: 06 September 2012
• Citation: (2012) N4783
• Docket Number: CR NO.922 of 2011
• Court: National Court
• Year: 2012

Full Title: CR NO.922 of 2011; The State and Benjamin Wakupa (Prisoner) (2012) N4783

National Court: David, J

Judgment Delivered: 6 September 2012

CRIMINAL LAW—sentence—murder—juvenile offender - killing of a young female aged between 12 and 14 years and 6 months with an axe immediately after committing the offence of rape or sexual penetration of a child in her house—more than 15 severe axe wounds inflicted on the deceased’s head, face and back - torn hymen - killing was to conceal earlier incident of rape or sexual penetration of a child—alleged use of illicit drugs by prisoner at time of offence—factors in aggravation significantly outnumber and outweigh factors in mitigation—case falling within worst category of offence - sentence not to be crushing—sentence of 25 years—custodial sentence—Criminal Code, s28, s29 and s300 (1)(a).

Cases cited:

Passingan v Beaton [1971–72] PNGLR 206; R v Allan Evi of Bereina [1975] PNGLR 30; Paulus Mandatititip v The State [1978] PNGLR 128; Goli Golu v The State [1979] PNGLR 653; Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258; Avia Aihi v The State (No 3) [1982] PNGLR 92; Kuri Willie v The State [1987] PNGLR 298; The State v Kenneth Baupo and Fabian Girida (1989) N795; Lawrence Simbe v The State [1994] PNGLR 38; Aloises Peter Irobo Kovei v The State (2001) SC676; The State v Jonathan Sokai (2002) N2334; Simon Kama v The State (2004) SC740; Manu Kovi v The State (2005) SC789; The State v Bernard Hagei (2005) N2913; The State v Clarence Tema Mongi (2007) N3259

SENTENCE

1. DAVID J: The prisoner was charged with one count of murder contrary to s300 (1)(a) of the Criminal Code, the State alleging that on 2 December 2010 at Elkina village, Mul Baiyer District, Western Highlands Province in Papua New Guinea, the prisoner killed one, Moreen Noki (the deceased) in circumstances where he intended to do grievous bodily harm to the deceased. On 26 July 2012, I convicted the prisoner upon pleading guilty.

2. After administering the allocutus, I directed that a pre-sentence report be compiled and filed by the Probation Service, Mt. Hagen branch at the request of the prisoner made through his counsel, Mr. Kapi by 16 August 2012. The report was duly compiled as directed and I thank Ms. Songoa, Probation Officer for her assistance. I heard submissions on sentence while on circuit in Minj last month and reserved to pass sentence on the prisoner today. This is the sentence of the Court.

3. The prisoner appears before me for sentence from custody.

4. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for life.

5. Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of murder: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

6. It is also settled law that each case must be decided on its merits: see Lawrence Simbe v The State [1994] PNGLR 38.

7. The short facts presented to the Court for the purposes of arraigning the prisoner were these. In the early hours of 2 December 2010 between 1:00 and 2:00 o’clock, the prisoner was at Elkina village, Mul Baiyer District in the Western Highlands Province. That night, the deceased, a young girl aged about 12 years was sleeping in her house in the village alone. Her parents were away. The prisoner knowing that the deceased was alone went to her house, broke down the door and entered the house. He grabbed the deceased and forcefully had sexual intercourse with her. The deceased struggled and fought with the prisoner. She managed to free herself and run out of the house and started shouting for help. Realising that the deceased was trying to alert people, the prisoner who was armed with an axe at the time chased the deceased and chopped her all over her head and back. The deceased died as a direct consequence of the injuries she sustained from the attack.

8. The medical report comprising the affidavit of Dr. Michael Dokup, Director Medical Services of the Mt. Hagen General Hospital sworn on 15 December 2010, the post mortem report dated 1 December 2010 and the medical certificate of death issued on 6 December 2010 confirms that the deceased who was estimated to be aged about 12 years was brought to the Mt. Hagen General Hospital on...