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

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

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

National Court: David, J

Judgment Delivered: 6 September 2012

N4783

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.922 of 2011

BETWEEN:

THE STATE

AND:

BENJAMIN WAKUPA

Prisoner

Mt. Hagen & Minj: David, J

2012 : 26 July, 16 August & 6 September

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, Sections 28, 29 and 300 (1)(a).

Cases cited:

Passingan v Beaton (1971-72) PNGLR 206

Regina v Allan Evi (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

Counsel

Mr. Joe Kesan, for the State

Mr. Philip L. Kapi, for the offender

SENTENCE

6 September 2012

1. DAVID J: The prisoner was charged with one count of murder contrary to Section 300 (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 2 December 2010 after her death and her body was the subject of a post mortem examination conducted at the hospital morgue on the same day at about 12:00 noon. The post mortem on the deceased revealed that she was sexually abused and sustained multiple axe wounds to her face, head and back and she died from these injuries. The injuries the deceased suffered were:

(a) as to the head, a criss-cross wound at the occiput area of the head fracturing the skull with spillage of brain matter and the scalp was also injured with the skin opened and bone exposed.

(b) as to the face, more than fifteen deep facial lacerations with depths ranging from 2 cm to 4 cm exposing facial and muscle tissue.

(c) as to the back, a wound measuring 10 cm deep, 7 cm long and 4 cm wide was inflicted exposing the shoulder blade, fractured posterior ribs and injury to the right lung.

(d) as to the perineum, a torn hymen.

9. On his allocutus, the prisoner said sorry to God, the Court, his family and tribe for committing the offence. He said customary compensation comprising pigs and cash, the total value of which he did not know, has already been paid to the family and relatives of the deceased.

10. The pre-sentence report, which I have considered, does not speak favourably of the prisoner. It was suggested in the report that the prisoner might be a heavy user of marijuana because of the way he conducted himself and his responses to questions posed to him during the interview with Ms. Songoa. The report recommends that a custodial sentence may be appropriate.

11. The prisoner is from Elkina village, Mul Baiyer District in the Western Highlands Province, single and subsistence farmer when he committed the offence. His parents are deceased. He has received Grade 3 formal education. There are six siblings in the family, four males and two females and he is the third born. The prisoner was apprehended on 2 December 2010 and he has been in custody since that time. That works out to be a period of 1 year, 9 months and 4 days.

12. At the committal hearing, Presiding Magistrate, Ms. Betty Jacobs determined the age of the prisoner to be 15 years invoking Section 63 of the Evidence Act. That determination is contained in the notice of committal dated 7 September 2011. Contrary to that determination, Mr. Kapi of counsel for the prisoner submitted that the prisoner was aged 17 years at the time of the offence and was now aged 19 years. Apart from the notice of committal, the rest of the depositions in particular the record of interview conducted on 2 December 2010 and the antecedent report do not indicate the age or date of birth of the prisoner. I have seen the prisoner when taking the plea on 26 July 2012 and when hearing parties’ submissions on sentence on 16 August 2012. My observation of the prisoner on both occasions convince me and I make a further determination under Section 63 of the Evidence Act and a finding of fact that the prisoner is currently less than 18 years old, but more than 16 years. This is consistent with the determination of Her Worship that the prisoner was aged 15 years when she committed him to stand trial in the National Court last September.

13. The offender has no prior convictions.

14. In mitigation, Mr. Kapi submitted that; the prisoner pleaded guilty; the prisoner expressed genuine remorse; the prisoner was a juvenile offender; the prisoner was a first offender; and that compensation comprising K6,000.00 cash and fifteen pigs was paid to the relatives of the deceased.

15. Counsel further submitted that the pre-sentence report suggests that the prisoner may have been taking illicit drugs at the time of the offence and this might have been a factor in causing him to commit the offence.

16. Mr. Kapi submitted that whilst the present case had some elements of categories 3 and 4 of the guidelines in Manu Kovi v The State (2005) SC789 as was demonstrated by the viciousness and the brutal manner in which the killing occurred and that the offence was committed in the night, a sentence within the range recommended within category 2 in the exercise of the Court’s discretion should be considered. Counsel urged the Court to impose a sentence between 16 and 17 years.

17. Mr. Kesan for the State submitted that aggravating factors in the present case are; that a young life was taken prematurely; multiple wounds were...