The State v Peter Wirundi (2010) N3994

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 23 April 2010
• Citation: (2010) N3994
• Docket Number: CR. NO. 1230 OF 2004
• Court: National Court
• Year: 2010
• Judgement Number: N3994

Full Title: CR. NO. 1230 OF 2004; The State v Peter Wirundi (2010) N3994

National Court: David, J

Judgment Delivered: 23 April 2010

N3994

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. NO. 1230 OF 2004

THE STATE

V

PETER WIRUNDI

Prisoner

Mt Hagen: David, J.

2010: 17 & 18 March,

:19, 20 & 23 April

CRIMINAL LAW – wilful murder – conviction on guilty plea- presence of prisoner - prisoner escaped from lawful custody before sentence – s.37 (5) Constitution – s.571 Criminal Code – sentence imposed in absentia.

CRIMINAL LAW – sentence – wilful murder – s.299 Criminal Code – prisoner killing second wife – deceased suspected of having extra-marital affairs – multiple injuries inflicted – death due to haemorrhage and haemopneumothorax - guilty plea – no prior conviction – sentence of thirty years IHL.

Cases cited:

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

The Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424

Ure Hane v. The State [1984] PNGLR 105

Thomas Kavali v. Thomas Hoihoi [1986] PNGLR 329

Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment of the Supreme Court (Kapi, DCJ, Los and Jalina, JJ delivered on 13 June 1997)

Manu Kovi v. The State (2005) SC789

John Baipu v. The State (2005) SC796

Steven Loke Ume & Ors v. The State (2006) SC836

The State v. Joseph Ulakua (2002) N2240

John Konobo v. The State (2004) N2500

The State v. Frank Johnston (No 2) (2004) N2586

The State v. Justin Komboli (2005) N2891

The State v. Wilson Okore, CR No.584 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 6 February 2009 at Lae

The State v. Peter Gilgil Angara, CR No.1680 of 2006, Unreported & Unnumbered Judgment of Kirriwom, J delivered on 8 September 2009 at Lae

Counsel:

Mr. Joe Waine, for the State

Messrs. Philip Leka Kapi & Peter Kumo, for the Prisoner

SENTENCE

23 April, 2010

1. DAVID, J: INTRODUCTION: At the call-over conducted at the beginning of the March 2010 circuit, this case was confirmed to be run as a trial over a period of two days beginning on 17 March 2010. Upon arraignment, the Prisoner entered a plea of guilty to a charge that on 11 July 2004 at Wanka village, Ogulbeng, Western Highlands Province in Papua New Guinea, he willfully murdered Sarah Peter contrary to s.299 of the Criminal Code. A short adjournment was necessitated after which Mr. Kapi of counsel for the Prisoner confirmed the plea. After my reading of the depositions, I confirmed the guilty plea and entered a conviction against the Prisoner.

2. I heard submissions on sentence on 18 March 2010 then adjourned for sentence on 19 April 2010 at 01:30 pm.

3. The Prisoner escaped from lawful custody on 13 April 2010 in a mass prison breakout from the Baisu Correctional Institution. When the Court reconvened on 19 April 2010, no written confirmation had yet been received from the Baisu Correctional Institution regarding his escape. I adjourned to allow time for that information to be made available. I now have that written confirmation which is contained in a letter from the Acting Commander of the Baisu Correctional Institution, Senior Inspector John Eluh to the Registrar dated 20 April 2010. The Prisoner’s name appears at Item 8 of the Mt. Hagen National Court Remandees Escape List.

4. Another matter I raised on 19 April 2010 was that the defence should be given an opportunity to provide evidence of a substantial amount of compensation allegedly paid to the deceased’s relatives by the Prisoner and his community. This is because, when I heard submissions on 18 March 2010, the defence had alleged that compensation (belkol included) totalling K39,000.00 and 60 pigs was paid to the deceased’s relatives by the Prisoner and his community. The defence did not provide any documentary material to confirm that compensation was indeed paid because it had anticipated that the matter was going to be run as a trial as scheduled, but instead it turned out to be a plea.

5. Mr. Kumo appearing for the defence on 20 April 2010 confirmed that no such material has been received by his office either here or in the possession of Mr. Kapi of their Wabag Office who had the carriage of the matter last month. Mr. Kumo submitted that in any event, the Prisoner has missed the chance that has been accorded to him by the Court and the Court should therefore proceed with passing sentence in his absence.

6. I propose to now invoke s.571 of the Code to sentence the Prisoner in absentia because by his conduct, i.e, his non-appearance to receive his sentence due to his escape from lawful custody, he has waived his constitutional right to be present at his trial accorded to him under s.37 (5) of the Constitution. In other words, the Prisoner has impliedly consented to the continuation of these proceedings in his absence: Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; The State v. Frank Johnston (No 2) (2004) N2586; John Konobo v. The State (2004) N2500; The State v. Justin Komboli (2005) N2891

BRIEF FACTS

7. The brief facts put to the Prisoner for purposes of arraignment are these.

8. The deceased is the second wife of the Prisoner.

9. Sometime early in the month of July 2004, the Prisoner went to Lae and returned on 11 July 2004 arriving in Mt. Hagen at about 04:00 o’clock in the morning. The deceased was there. They jumped on another PMV to go to the village and they were dropped off at Wanka village, Ogulbeng.

10. As they were walking to the village, an argument developed between the Prisoner and the deceased. He accused her of having extra-marital affairs with other men. He punched the deceased and she fell to the ground.

11. The deceased then took out a knife and swung it at the Prisoner. The knife cut the Prisoner’s leg. There was a struggle whereby the Prisoner overpowered the victim and took the knife off her.

12. With this knife, the Prisoner cut the victim on her neck, right chest and the abdomen. One penetrated the right lung. Other cuts were also inflicted on her back which affected her spinal cord. The cuts were very severe that the victim died as a result of those injuries.

13. The prisoner intended to kill the victim.

ANTECEDENTS

14. The State did not allege any prior conviction against the Prisoner.

PRE-TRIAL DETENTION

15. After his arrest, the Prisoner was in custody at Baisu Correctional Institution for 1 year and 7 months until he escaped in a mass prison breakout. He was recaptured on 14 August 2009. He had been in custody for a further seven months and three days as at 18 March 2010. He would have been in custody for a total of two years, two months and three days as at 18 March 2010. As I have alluded to earlier, the Prisoner escaped once again on 13 April 2010 in another mass prison breakout. He would therefore have been in custody for a total of two years and three months as at the date of his escape.

ALLOCATUS

16. When the Prisoner was given the opportunity to address the Court he said the following.

17. The deceased was the second of the two wives he had. From the first marriage, he has five children. Out of those children, the eldest, a male attends a school in the Dei Council area, Western Highlands Province doing Grade 10. The next three children in the order of birth are females and they attend school at the Ogulbeng Primary School, Mt. Hagen, one doing Grade 4, another doing Grade 2 and the last of them in the Preparatory class. The last born is a male. He said he is worried about the wellbeing of his family; including the hardships to be faced in payment of school fees while he is in custody; and that his father is deceased while his mother is old and who in her state cannot assist the family.

18. The deceased was having an affair with a person infected with the HIV Aids virus while he was away in Lae so when he heard about this, he caught a PMV and came to Mt. Hagen. When he arrived in Mt. Hagen, he took another PMV to go to his village.

19. He asked the deceased about the allegation to which she said: “my like.” He got angry and hit the deceased causing her to fall to the ground.

20. While on the ground, the deceased took out a knife from her bilum and cut him on one of his legs. He pulled the knife off from the deceased, but during the struggle he got a cut to one of his hands. He then attacked the deceased using her knife inflicting cuts to various parts of her body.

21. The Prisoner attacked the deceased because she was having an affair with an aids victim. He said, had she not attacked him with a knife, he would not have retaliated in the way he did. He attacked her to save his own life.

22. The Prisoner further said; that he had not been in trouble with the law before this incident; that he was sorry for committing the offence; sorry to the deceased and her family; that about five days later, he paid to the deceased’s relatives belkol consisting of cash of K5,000.00 and two pigs; that after two months of the incident, his community paid to the deceased’s relatives compensation consisting of cash of K34,000.00 and fifty eight pigs; and that a total of K39,000.00 and sixty pigs has been paid to the relatives of the deceased as belkol and compensation.

23. The Prisoner said for all the above reasons, the court have mercy on him.

THE PENALTY

24. Section 299 of the Code creates the offence and prescribes the penalty for wilful murder which is death. That...