The State v Kapi Korop

• Jurisdiction: Papua New Guinea
• Judge: Liosi, AJ
• Judgment Date: 14 April 2016
• Citation: (2016) N6336
• Court: National Court
• Year: 2016
• Judgement Number: N6336

Full : CR No 201 of 2014; The State v Kapi Korop (2016) N6336

National Court: Liosi, AJ

Judgment Delivered: 14 April 2016

N6336

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 201 OF 2014

BETWEEN

THE STATE

AND

KAPI KOROP

Kundiawa: Liosi, AJ

2016: 7thApril & 14thApril

CRIMINAL LAW – Sentence –Murder – Guilty plea – Election related violence – Prisoner shot deceased with high powered firearm from the back – Bullet exiting from the chest – Mitigating factors considered – First time offender – One off incident – Some remorse – Aggravating factors considered – Use of dangerous weapon – Unlicensed firearm – Deceased was unarmed and fleeing – It was a brutal killing in cold blood – Complete disregard for human life – Prisoners version of events on allocutus different from or conflicts with brief allegations of facts – Sentence based on events most favourable to prisoner.

CRIMINAL LAW – Sentencing guidelines set by Manu Kovi discussed in light of Thress Kumbamong v. The State – Courts sentencing discretion under s. 19 unfettered –

CRIMINAL LAW – Appropriate sentence – Aggravating factors far outweigh Mitigating factors so much so they become insignificant – Head sentence of 25 years imposed – No Pre-sentence Report warranting suspension of any part of sentence.

Cases Cited:

Anna Max Marangi v. The State (2002) SC 702

CRA No. 64 of 1994 Antap Yalu v. The State

Goli Golu v. The State (1979) PNGLR 653

Imiyo Wamela v. The State (1982) PNGLR 269

Jack Tanga v. The State (1999) SC 602

John Baipu v. The State (2005) SC 796

Koniel Alar and Hosea Biu v. The State (1979) PNGLR 300

Law v. Deed (1970) SASR 374

Manu Kovi v. The State (2005) SC 789

Roger Jumbo and Aidan Awatan v. The State (1997) SC 516

Simon Kama v. The State (2004) SC 740

The State v. Issau Parao (2008) N3625

The State v. John Kapil Tapi (2000) SC 635

The State v. Kobua Kove (2010) N4063

The State v. Laura (No.2) (1988-89) PNGLR 98
The State v. Mapa Lom (2012) N4725

The State v. Marcus Woibun (2012) N4631

Thress Kumbamong v. The State (2008) SC 1017

Uname Aumane v. The State (1980) PNGLR 510
Ure Hane v. The State (1984) PNGLR 105

Counsel:

Mr. K. Umpake, for the State
Mr. M. Yawip, for the Prisoner

JUDGMENT ON SENTENCE

14th June, 2016

1. LIOSI AJ: On the 7th April 2016, the prisoner pleaded guilty to one count of murder of one Bangye Konge at Kup, Kerowagi District in the Chimbu Province on 6th September, 2013 contrary to section 300(1)(a) of the Criminal Code.

Brief Facts

2. The brief facts upon which the prisoner was arraigned to which he pleaded guilty are as follows. The accused brother Peter Korop contested the Kup local level government presidential seat in the Kerowagi District, Simbu Province and lost. The prisoner, his brothers and relatives blamed the deceased and his brothers for the election loss of Peter Korop.

3. At about 6pm on 6th September 2013 at Kup Station in the Kerowagi District the accused saw the deceased. The accused approached the deceased armed with a high powered rifle. The deceased realized this and ran for his life. The accused fired and missed the deceased at first instance. He then fired a second shot at the fleeing deceased. The deceased was hit on his back and the bullet exited from his chest. He died of the gunshot wound whilst in transit to Kundiawa hospital.

Sentencing Issues

4. The main issue for determination is the appropriate sentence for the prisoner. To answer this, I need to consider the following. The relevant facts and circumstances surrounding the case, mitigating and or aggravating factors, any extenuating circumstances, the sentencing trend for this kind of offence and whether any part of the sentence ought to be suspended.

Antecedents

5. The prisoner is from Kungu Village, Kup Local Level Government, Kerowagi District, Chimbu Province. He is a villager with no formal education and is married with 7 children. He has no prior convictions and is 49 years old now.

Allocutus

6. In his allocutus the prisoner said the following;

He is sorry to Father God in Heaven and sorry to the Court. The State witness Robert Tai Kongo is the complainant in the proceedings and was involved in the trouble. On or about 5th September 2013, he was advised by a Mr. Kela Komboi that Robert Tai Kongo and the others were planning to attack him. On the 6th September 2013 they came to his place at Sirono. Kombane Konge the state witness was leading the big group of people. He was in possession of a single shot gun. At the prisoner’s place he called out, now I am here. He fired the first shot at the prisoner. The prisoner than ran into the house and got a community gun and came out of the hospital gate. The group of people started running away. He fired the first shot at Kombane Konge and missed. He then fired the second shot which killed the deceased. He was doing this to try and protect the new sawmill machine put in the house. He apologised for shooting the deceased. He said they fired at him first so he fired back.

7. On 7th September 2013, police went and arrested thirteen innocent people. On the 8th day, they went back and burnt two permanent buildings, six semi-permanent buildings and twenty one bush material houses. They took his wife and raped her till day break with two other young ladies and one young school girl.

8. He says he is married with seven children, three of whom are in high school. The problem he received now is by accident. He respects the law and has surrendered himself to court. That on 8th July 2014 although there was a mass breakout from Barawaghi Correctional Service, he didn’t run away from prison. He is very sorry and has asked the court to have mercy on him.

Submission by Defence

9. Mr. Yawip of counsel submits that this is not the worst case of murder and therefore does not deserve the maximum prescribed penalty of life imprisonment under section 300 (1) (a) of the Criminal Code. Further the court has discretion under section 19 of the Criminal Code to impose a lesser sentence.

10. It is trite law that the maximum penalty is reserved for the worst type of offences pursuant to the principles established in Goli Golu v. The State (1979) PNGLR 11. Though this case is considered serious it does not fall into the worst category cases. He sets out various factors in support of his contention.

11. He submits that the prisoner pleaded guilty to the charge saving time and resources in conducting a trial, he has expressed remorse and has no prior convictions. He further submits that this is an election related threat of violence to him which culminated in the killing hence there was a degree of provocation.

12. Further the prisoner in his allocutus says his houses were burnt, his wife and other woman in the village were raped and were subjected to jungle justice so he says which are relevant factors in mitigation.

13. Counsel referred the court to the sentencing tariffs set by the Supreme Court in Manu Kovi v. The State (2005) SC789 to consider when sentencing. He submits that the current case falls into category 2 as there was some preplanning, element of viciousness, a weapon was used and there was no strong intention to do grievous bodily harm. He submits that a sentence of 15 - 20 years is appropriate considering the circumstances.

State Submission

14. Mr. Umpake of the State on the other hand submitted that there are strong aggravating factors against the prisoner. They included the use of a dangerous weapon which was a high powered firearm, the firearm was unlicensed and was in the possession of the prisoner for some time, the prisoner ensured the deceased was shot when he fired the second fatal shot after missing with the first shot, the shot was fatal killing the deceased, the deceased was unarmed and defenceless and was in fact fleeing for his life when he was gunned down, it was a brutal killing in cold blood and there was a complete disregard for human life.

15. In mitigation the prisoner pleaded guilty, it was a one off incident, he was a first time offender and showed some remorse.

16. He submits that the aggravating factors far outweigh the mitigating factors. The seriousness of this crime cannot be watered down by inadequate mitigating factors. That if the Court should accept this part of the States submission then it follows that the mitigating factors are reduced in weight and the Court should give little or no reliance at all on the mitigating factors when determining the appropriate penalty.

17. Mr. Umpake says the aspect of sentencing for a crime serves various purposes. It includes deterrence, separation, rehabilitation and retribution. The Courts have worked around these theories to determine the appropriate penalty.

18. On the issue of what is the appropriate penalty, Mr. Umpake refers me to a number of Supreme Court authorities including Acting Public Prosecutor v. Uname Aumane (1980) PNGLR 510 which discusses the theories of sentencing, Simon Kama v. The State (2004) SC 740, and more recently the Supreme Court case of Manu Kovi v. The State SC 789.

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