The State v Jackson Bairom (No 2) (2003) N2414

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 10 June 2003
• Citation: (2003) N2414
• Court: National Court
• Year: 2003
• Judgement Number: N2414

Full Title: The State v Jackson Bairom (No 2) (2003) N2414

National Court: Kandakasi J

Judgment Delivered: 10 June 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 of 2000

THE STATE

-V-

JACKSON BAIROM (No. 2)

WEWAK: KANDAKASI, J.

2003: 6th and 10th June

CRIMINAL LAW – Sentence – Willful murder – Repeated attacks on an older man with piece of wood – Stabbing deceased’s wife with knife and attempting also to attack deceased daughter – Parents stepping in the way of prisoner wishing to marry their daughter cause of attack – Prisoner with one prior conviction for manslaughter for killing his wife – Conviction after a trial – Ss.19 and 299 of the Criminal Code – Sentence of life imprisonment imposed.

Papua New Guinean Cases Cited:

Goli Golu v. The State [1979] PNGLR 653.

Ure Hane v The State [1984] PNGLR 105.

Avia Aihi No 3 v The State [1982] PNGLR 92.

The State v. Ian Napoleon Setep (unreported judgement) N1478

The State v. Andrew Keake (unreported judgement) N2079

The State v. Godfrey Edwin Ahupa (unreported judgement) N1789.

The State v. Theo Raphael (No.2) (14/02/02) N2180

The State v. Christopher Kutau & Cosmos Kutau Kittiwal (No.2) (24/05/02) N2249.

Counsels:

Mr. M. Ruari for the State

Mr. G. Korei for the Prisoner

10th June 2003

KANDAKASI J: On the 4th of June 2003, this Court found you guilty on one charge of willful murder contrary to s. 299 of the Criminal Code. The Court then adjourned for submissions to Friday the 6th on your request. Both you and the State’s oral submissions were received on the 6th as scheduled. The submissions followed your own address on sentence, where you told the Court not to give you the death penalty but a term of years. The Court then reserved its ruling to today. This is the Court’s decision on sentence.

Relevant Facts

The relevant facts are set out fully in the judgement on verdict. For sentencing however, I note a number of factors are important. Firstly, you have been already convicted for manslaughter for the killing of your wife. Sometime after that, you befriended the deceased’s daughter, Daisy. Her parents appear to have not approved your befriending their daughter and it seems there was some mediation over that. You claimed that following the mediation, you went to get “the result from the parents whether you would be allowed to marry their daughter or not and depending on the answer, a repayment of what you spent on her or how much bride price should you pay”.

Secondly, upon arrival at the deceased’s house you did not ask the parents the appropriate questions to get the “result” you claimed you went to receive from them. Instead, you called for Daisy about three times. Daisy’s mother responded to you in a question form, “Is Daisy your wife?” This indicated that you were not welcomed. So you should have left but you did not.

Thirdly, despite the negative response and even after the deceased pulled back into his house its rope ladder, you climbed into his house through one of the posts. Once inside the house, you started to attack the family starting with the deceased, then his wife followed by Daisy.

Fourthly, you used a piece of sawn timber 40 centimeters in length and 3 x 2 cm in size. You hit the deceased several times with the timber starting with his head, then his neck area and all over his body. You even pulled on his testicles. The deceased fell down on the floor and immediately died from the injuries you inflicted upon him.

Fifthly, you proceeded to attack the deceased’s wife with a knife. You started with attempting to stab her in her virginal area. After stabbing her, you turned to Daisy and tried to attack her as well but she managed to run away. Going by these series of attacks, it is clear that you acted out what you said to the deceased’s family, “your lives are in my hands”.

Finally, the deceased was an older person than you were. This means you were fighting against an unequal. The same is true in the case of you attacking the deceased’s wife and Daisy. Assessing from your attitude in Court and your past record, I not that you are a dangerous and an aggressive man. So I have no doubt that you overpowered the deceased and his family. They called for help, according to Daisy but help did not come and you got away after having done the damage.

Address on Sentence

There is no argument that you have a prior conviction for manslaughter for killing your wife. Presently, you are about 42 years old and have mainly lived a subsistence dwelling. Grade 6 is the maximum level of formal education you have reached. You have a brother but he is hardly home. So you are the only one looking after your mother.

You have 7 children of your own, aged between 17 –3 years old with 3 of them in community school. In your own address, you quoted the words, “For there is not a just man upon the earth, that doeth good, and sinneth not.” purportedly from Ecclesiastes 7:7. The correct verse is verse 20.

Your lawyer highlighted your personal and family background and submitted on your behalf that I should not impose the maximum sentence of death. Instead, he argued for a term of imprisonment starting at 13 years. He argued that, your case is not the worst kind of willful murder, which could attract the imposition of the maximum penalty. He then referred to the Supreme Court judgements in Goli Golu v. The State [1979] PNGLR 653; Ure Hane v The State [1984] PNGLR 105, and Avia Aihi No 3 v The State [1982] PNGLR 92. In these cases, the Supreme Court made it clear that the maximum penalty should be reserved for the worst kind of offence under consideration.

On the other hand, the State stressed the circumstances in which you committed this offence and the fact that you have a prior conviction for manslaughter, which is another serious offence. In so doing, the State emphasised the fact that, you attacked the deceased and his family in their house and that you attacked all of them. It was also pointed out that you committed a very serious offence. Counsel for the State did not suggest any particular sentence.

The Offence

The offence of willful murder is prescribed by s.299 of the Criminal Code as follows:

“1. Subject to succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person is guilty of willful murder …

2. A person who commits willful murder shall be liable to be sentenced to death.”

Section 299 of the Code is subject to the provisions of section 19 of the same legislation. That section reads:-

“(1) In the construction of this Code, it is to be taken, except when it is otherwise expressly provided –

(aa) person liable to death may be sentenced to imprisonment for life or for any shorter term.”

Given the wording of this provision, sentences other than death have been imposed for persons found guilty of willful murder as in your case. In Goli Golu v. The State (supra), Mr. Goli Golu was a well-educated man with an unblemished record. He was convicted and sentenced to the then maximum sentence of life imprisonment for killing the deceased in the precincts of the courthouse at Kwikila in the Central Province. On the day of the killing, two opposing factions or clans attended the Kwikila Court for court proceedings against some of them, following a riot between the two groups over land dispute. On the day of the hearing, extra police were deployed to maintain maximum security and peace. Despite of the police presence, the appellant got in with a knife undetected and then stabbed the deceased. He did not personally have any grudges against the deceased other than being a member of the opposing clan. The trial Judge placed emphasis on the prevalence or rising trend of killings taking place within the Court precincts which showed total disrespect for the Court. The Supreme Court on appeal reduced the sentence to 13 years on the basis that the sentence imposed by the National Court was disproportionate to the circumstances of the crime.

Similar views were taken in Ure Hane v The State (supra) and Avia Aihi No 3 v The State (supra). The cases also make it clear that it is difficult to classify what is a worse case of wilful murder and what is not. My brother, Justice Sevua spoke of that difficulty in The State v. Ian Napoleon Setep (unreported judgement) N1478 in these terms:

“Whilst it is true that different types of willful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between willful murders...