John Elipa Kalabus v The State [1988] PNGLR 193

• Jurisdiction: Papua New Guinea
• Citation: [1988] PNGLR 193
• Date: 27 October 1988
• Court: Supreme Court
• Year: 1988

Full Title: John Elipa Kalabus v The State [1988] PNGLR 193

Supreme Court: Kidu CJ, Kapi DCJ, Woods J

Judgment Delivered: 27 October 1988

1 Criminal law—appeal against sentence—murder—life imprisonment—plea of guilty—intoxication—chance of rehabilitation

2 CRIMINAL LAW—Appeal against sentence—Murder—Sexual assault on nine–year–old girl—Sexual sadist—Life imprisonment imposed—Whether worst type of case—Effect of Plea of guilty—Relevance of intoxication—Rehabilitation—Life imprisonment confirmed

A 37–year–old male with a history of psychological sexual problems and a previous conviction for rape, took a nine–year–old female child from her home and raped and assaulted her in circumstances suggesting sexual sadism. The victim later died from her injuries. The accused pleaded guilty and the trial judge, after finding that the case was one that fell into the worst type of category of offences for which the penalty of life imprisonment should be reserved, sentenced him to life imprisonment.

On appeal against sentence:

Held:

That the sentence should be confirmed.

Discussion of factors relevant to sentence in the circumstances including, plea of guilty, intoxication, rehabilitation, previous conviction and lapse of time since previous conviction.

Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume (1981) SC201, Public Prosecutor v Tom Ake [1978] PNGLR 469, The State v John Kalabus and Aita Sanangkepe [1977] PNGLR 87 and Ure Hane v The State [1984] PNGLR 105 referred to

Appeal Against Sentence

This was an appeal against severity of a sentence of life imprisonment for murder.

___________________________

Kidu CJ:

The appellant was convicted of the murder of a nine–year–old girl. He pleaded guilty. The sentence imposed on him, which he appeals against, was imprisonment for life.

GROUNDS OF APPEAL

He says that the sentence was manifestly excessive in that:

(a) the trial judge wrongly concluded that his case fell into the worst category of its kind;

(b) the trial judge erred in failing to consider or properly consider the effect of the guilty plea by him;

(c) the trial judge erred in failing to consider or properly consider the long lapse in time between his convictions;

(d) the trial judge erred in not considering or properly considering the effect of intoxication at the time of the offence;

(e) the trial judge erred in failing to consider or properly consider the rehabilitation aspect of sentencing;

(f) the trial judge acted without conclusive evidence in his judgment that he was likely to offend again.

He asks this Court to quash the sentence of life imprisonment and impose in its stead a term of years of 12 to 15 years duration.

On 5 October 1986, the appellant, then 36 years old, returned to the house where he had been staying (with the victim and her family) in the early hours of the morning. The victim was asleep. He took her from her room to the bushes and had sexual intercourse with her and it was as a result of this unlawful carnal knowledge of a girl under 12 years of age (an offence which carries a maximum penalty of life imprisonment) that the victim died.

Dr Barua's conclusion was: "According to my findings, as recorded in the post mortem report, the cause of death was haemorrhagic shock and asphyxia due to injury of the vagina."

The post mortem report includes the following findings:

"face: small abrasion medial aspect (L) ear

mouth: scratch mark lateral aspect (L) lip

buttock: blood stains

pubic hair: blood stains

hymen: absent

vaginal

examination: blood clots in vagina—large tear with irregular edges in posterior vaginal wall extending up to the cervix—laceration felt in posterior fornix possibly involving the cervix—laceration in vagina appeared to have been made by a blunt instrument with...