Aloises Peter Irobo Kovei v The State (2001) SC676

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Gavara–Nanu J, Kandakasi J
• Judgment Date: 14 November 2001
• Citation: (2001) SC676
• Docket Number: SCR No 32 of 2000
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC676

Full Title: SCR No 32 of 2000; Aloises Peter Irobo Kovei v The State (2001) SC676

Supreme Court: Amet CJ, Gavara–Nanu J, Kandakasi J

Judgment Delivered: 14 November 2001

SC676

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR No. 32 of 2000

ALOISES PETER IROBO KOVEI

-Appellant-

V

THE STATE

— Respondent-

WAIGANI: AMET,CJ., GAVARA-NANU, KANDAKASI, JJ.

2001 : FEBRUARY 23

2001 : NOVEMBER 14

CRIMINAL LAW — Appeal against sentence — Murder committed in pursuance of abduction and rape — Sentence and conviction after trial — Two prior convictions — Worse type of offence — Appeal dismissed — Sentence of life imprisonment confirmed — Criminal Code (Chp. 262), S.300 (1)(b)(i).

Cases Cited

Avia Aihi v. The State(N0.3) [1982] PNGLR 92

Goli Golu v. The State [1979] PNGLR 653

Joe Foe Leslie Leslie v. The State (August 1998) SC 560

John Fatty Marasev. The State [1994] PNGLR 415

The State v Kaudik [1987] PNGLR 201

James Mora Meaoa v. The State [1996] PNGLR 280

State v Penias [1994] PNGLR 48

Counsels

Appellant in Person

K. Umpake for the Respondent

14th November 2001

BY THE COURT: This is an appeal by the appellant against a sentence of life imprisonment for murder of one Marin Tangivo ("the deceased") contrary to s.300 (1)(b)(i) of the Criminal Code (Chp. 262) ("the Code") committed in the course of pursuing an unlawful purpose. The unlawful purpose was a gang abduction and rape of a young girl contrary to sections 350 and 347 respectively.

The appeal was heard on the 22nd of February 2001 and was reserved for the Courts decision. This is now the Court's decision.

The Facts

The relevant facts are these. On the 3rd of February 1999, the deceased went with a girl friend, an Elizabeth Matene to 9 mile. They went there to visit Elizabeth's aunty. After the visit, Elizabeth and her aunty brought the deceased to the bus stop for her to catch a bus to her parent's house at Bomana. That was about 5:00pm. They waited at the bus stop until about 6:00pm and no bus turned up. Consequently, they decided to go back to Elizabeth's aunt's house and spend the night there and they headed back for the house.

On the way, a group of young men numbering about 8 to 10 came from behind Elizabeth, the deceased and Elizabeth's aunty and held them up with bush knives and pocket knives and a gun. They tried to pull them away from their shirts or the tops they were wearing at the time. The gang threatened to kill them and in fact attempted to stab Elizabeth but she managed to fight them off with the help of her aunty and escape into a nearby house. The aunty was stabbed three times before she escaped being abducted and raped.

Unfortunately, the deceased was not able to fight the gang off and escape. She was confronted and held up by about 4 to 5 of the gangsters and taken away from where she was held up. The gang then raped her in turns. The Appellant was the 7th person to rape her. Thereafter she was taken to another place, a church and there the gang again raped her in turns.

The deceased cried in pain and called for help. In a bid to cover their crimes, the gangsters killed her by chopping her around the neck area and threw her into a drain. The deceased's body was subsequently found through police investigations. The appellant was charged for the murder of the deceased. The State raised s. 7 of the Code and that made the Appellant a principle to the gang murder of the deceased.

The Appellant denied the charged but was found guilty after a trial, which was exclusively on depositions which, was admitted with the consent of the Appellant. In his record of interview, the Appellant admitted to having abducted and raped the deceased. He however, denied having killed her and concealing her dead bodily.

The appellant's own father, gave a statement which was in evidence. That statement speaks of the Appellant being aged about 24 years as at the 5th of February 1999 and coming from a broken family. His father appears to have remarried two additional wives after the appellant's mother had died. He lives with those wives and their children. The appellant did not finish off his education well. He got into drugs and was convicted by the District Court twice, first in 1997 and the second one in 1998. Since then, he developed into a criminal with stealing from people to survive and engaging in acts of violence even to the point of threatening and attempting to kill his father and his step mothers. He has become a street boy living from one place to another after committing a crime at the last place on each occasion. He thus has no permanent place of abode.

The National Court's finding and Judgement

The trial judge found that the killing was the worse of its kind. This is what the trial judge said:

"This killing in my view is one of the worst murder killings. How worse can it be? A woman abducted, raped and then killed. This was a gang rape or pack rape and of course the killing can be described as a pack killing as well. This offence is now prevalent in this country and more particularly in the 9-Mile area recently and as I have indicated that it scored another recently. These types of killings attract a stern punishment from the courts and the courts must send out a warning that stern punishments will be meted out to those who commit these types of killings. While you are young man and you did not have a good upbringing, the vicious nature of the killing in this case in my view overweighs any mitigating factors that may have been said on your behalf.

And in that regard, the sentence of the court is this. That you are sentence to life imprisonment with hard labour."

Clearly, the learned trial judge found that the case before him was of the "worse type" of killing.

The offence and sentencing trends

The offence with which the appellant has been charged is provided for by s. 300(1)(b)(i) of the Code in the following terms:

"(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: -

(a) … or

(b) if death was caused by means of an act-

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) …

Penalty: Subject to Section 19, imprisonment for life.

(2) …

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person."

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