State v Baupo and Girida [1989] PGNC 28; N795 (13 December 1989)

Unreported National Court Decisions

N795

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR: 1117 OF 1989)
THE STATE
V
KENNETH BAUPO AND FABIAN GIRIDA

Popondetta

Hinchliffe J
13 December 1989

CRIMINAL LAW - Sentence - Murder - Life Imprisonment - Factors considered - Deceased killed when a robbery was occurring - Category - Robbery of the worst type - Accused persons fully armed - No remorse shown after the killing - Further offences committed same night on the premises - Community interests - The need to protect members of the community from wilful destruction of human life.

Facts:

The first accused was found guilty while the second accused pleaded guilty both to the charge of murder. The deceased a 63 year old man was stabbed with a knife while a robbery was taking place at night in the house he was living in. The two accused and three others heavily armed with a shotgun, spear guns and knives had gone to the premises with the intention to rob. The group subsequently stole a motor vehicle on the same premises and took off with the stolen money.

Held:

1. Both accused nersore wentesentenced to life imprisonment with hard labour.

2. &##160; I60; In img teeencowollorectore coned.

(a) ـ D60; D60; Deceaseceased, aed, an oldn old man man was innocent and had not provoked theck.(b)& ټ Deceaas killedilled duri duri during thng the occurence of a robbery.

(c)&>(c) &#A robbery in a hoas wathiwathis case, is of the worst type. (Gimble v. The State Unreported S.C. 369) 369).

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(d) ;&#16upfullyd wiyd withotguhotgun, spear guns and knivesnives.

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(e)&#1e) ـ No remoase was show shown after the killing ofdecea/p> <&##160;othe othe other offr offr offencesences were committed on the same night on the premises during and after thling.

(g0; ; Peon the commucommunity sity should be protected from the wilfulilful dest destructiruction of human life and without fear wheng abheir usiness.

Cases Cited:

Gimble v. The State Unreporteported S.ed S.C. 36C. 369.

Sentence:

On convictions for murder the following reasons for sentence were given.

Counsel:

F. Kuvi, for the State.

D. Koiget, for the accused.

HINCHLIFFE J: Kenneth Baupo, you have been found guilty and Fabian Girida you have pleaded guilty that on the 13th day of December, 1988 you murdered one Athol Herbert Carrington Smith of Sydney, Australia maximum penalty for this offence is life imprisonment.

.

The brief facts of this case are that on the 13th of December last year you and three others went to the Awala Martyrs Plantation with the intention to rob. When you arrived at the house, three went inside including the two of you. The Manager of the plantation, Douglas Smith was outside asleep on the verandah, it was night time. His sister Susan Smith and uncle (the deceased) who were visiting were also asleep inside.

The deceased was a man of about 63 years of age. You went to the house armed with a shotgun, spear guns and knives. Fabian Girida pointed a shotgun at the head of Douglas Smith and ordered him to open the safe. Soon after that the deceased man heard some noise and came out to see what was going on. He was carrying a baseball bat. Susan Smith stayed in her room.

When the deceased came outside, you Kenneth Baupo plunged the knife into his right chest. Athol Herbert Carrington Smith fell down and died instantly. Douglas Smith tried to help him but was threatened by you Fabian Girida not to assist. Douglas Smith was then ordered to get the money out of the safe.

After the cash boxes were removed, you all went down to Douglas Smith’s car. Douglas Smith was ordered to start the car which he did. He got out of the car and you got into the car. The shotgun was fired at Douglas Smith but the shot missed him. You all then drove off in a stolen car with Fabian Girida driving it.

You then sometime later bought beer at the store and sat on the beach and got drunk. They are the brief facts relating to this case.

First of all, in relation to Kenneth Baupo. Your lawyer has asked me to consider several matters when assessing penalty. First that you have no prior convictions. Normally prior convictions are taken into account but with an offence as serious as this one, the fact that you have no prior convictions loses some of its significance. You have a good work history and a reasonably good education but that of course could be held against you.

I’m told by your lawyer that you have an oil palm block and a cocoa block and you also have a trade store and you’re only twenty years of age. I say that that could be held against you because you had no reason whatsoever to do what you did. Clearly you had money but you were greedy and you wanted more.

You are a young person and I’ve been asked to consider that you are about 20 or may be a few years older. I do take that into account, but, once again I say that the seriousness of this charge outweighs your age. I also take into account that you didn’t go to the Awala Martyrs Plantation intending to kill the deceased or any one else and I also note what your lawyer has said about you being needed to tend to your property.

Naturally when I consider things in your favour I must consider things not in your favour as well. It was you infact who stabbed the man and killed him. That man was 63 years of age. He was an old man. You’re a young strong person. He had no hope against you whatsoever. Against you also is the fact that you went to the house armed with a shotgun, spearguns and knives. You were well prepared. Not only were you prepared but the robbery on this house was well planned. It is clear from what you Kenneth Baupo said and from what you Fabian Girida said, that you intended to go and rob.

Also against the both of you is the fact that the victim was absolutely innocent. He was minding his own business and he had not bothered either of you in any way whatsoever. There had never been arguments between you and you didn’t know him and he didn’t know you. He had in no way provoked you to do what you did and that also applies to his niece and nephew. Neither of you showed any remorse at all after this man was brutally stabbed. When he collapsed to the ground bleeding profusely, Douglas Smith, his nephew, tried to help him. You Fabian Girida stopped him and threatened him if he tried to help him. All you wanted him to do was to open the safe. You left that poor old man there to bleed to death.

After all of that you went ahead and got the money and you committed another crime by stealing the motor vehicle. Prior to that a shot was fired at Douglas Smith. Some would look on that as attempted murder. Still showing no remorse whatsoever you drove off in a stolen car and subsequently bought beer. You celebrated, because what you did was to then sit down and drink beer and have a bit of a party and you got drunk. That indicates to me that none of you were sorry for what had happened.

Against you Kenneth Baupo is that you went into the witness box and told lies. You swore on the Bible to tell the truth and then you told lies. That is another criminal offence which is called perjury. I’ll leave it up to the State whether they wish to prosecute you on that charge or not.

Fabian Girida, your lawyer has asked me to take into consideration a number of matters as well. He has asked me to take into account the fact that you have pleaded guilty. Even though a plea of guilty is usually taken into account at criminal proceedings, in this case it loses much of its weight because of the seriousness of the charge. He also submitted that you cooperated with the police.

I’m satisfied that you did cooperate to a certain extent but you certianly kept from the police part of your involvement. Against you of course is the fact that you are not new to the Courts. A number of prior convictions have been alleged against you which you have admitted to. You’ve been sent to jail before but it doesn’t sent to have done any good. In the past you have been sent to jail for dishonesty charges and also for being unalwfully on premises and also for being in possession of offensive weapons and those prior convictions go back some eight years or so.

It can’t be said in your case that you are a young person because you’re not. You are aged twenty six years. You are not entitled to that consideration which Courts give to young people. Also against you is that this was a well planned robbery and you were the leader. As I said to Kenneth Baupo weapons were used.

When weapons are used in a crime of this nature, immediately there is a risk that someone will be injured or killed. It seems that you were the one who acquired all the weapons and you’d hidden them somewhere out near the Corrective Institution pending the robbery.

I have also considered what both of you have said prior to your lawyer addressing me. There is no doubt that this murder must be placed in the most serious category. A family innocently went to bed that night like any of us would do in our own homes. Not long after that, in you came, uninvited and heavily armed with intention to rob and steal and to take money from the safe. It is quite clear to me that neither of you showed any sympathy whatsoever towards your victims. You treated then like something less than human. You Kenneth Baupo, plunged a knife into an innocent old man’s chest. As I said he did not have a hope against you. He just died there on the spot. Blood poured from his body. Douglas Smith tried to help him but he wasn’t allowed to. Both of you were far more interested in getting some money for your greedy selves.

I have no doubt that that dead man’s family is absolutely shattered by all this. He too had a family like all of us do and I have no doubt at all that they were deeply saddened and still are. He was someone’s father, he was someone’s uncle. He was a loved one of many people. You Kenneth Baupo, snuffed out his life like standing on an ant. You just didn’t care. A family has now lost one of its loved ones, brutally murdered in a foreign country. Like any family, they will never forget their loss. You have created an enormous sadness in that family.

According to a Supreme Court decision on the 4th of August this year named Gimble -v- The State (S.C. 369) the Court said that armed robbery in a house is the worse type of robbery. That was a Court of three judges of which I was one.

The Court said, inter alia:-

“One of the basic rights enshrined in the Constitution is protection of the privacy of the home. A man’s home, whether it is a mansion or a shack is his castle and we think the punishment for robbery of a home should reflect those community values.”

People in the community are shocked and horrified at this type of offence because it could have so easily been one of their own. It could have been their house and it could have been their father, grandfather or uncle, brother or whatever who was brutally and cowardly knifed to death. The community demands that the Court helps to stop this wilful destruction of human life. A destruction that can only cause misery to a family. The community demands that the Court assist in returning Papua New Guinea to a peaceful loving Christian country where people can live in houses and walk the streets without being in fear of their lives. That is where the country now is. Innocent people are living in fear night and day because of people like you. It is disgraceful.

I have considered whether I should give you different sentences but when I consider everything for and against you I’m of the view that it balances out and that you should receive the same sentence.

As I’ve stated, I consider that this murder falls into the worst category and I make the following order:-

The both of you are convicted and sentenced to life imprisonment in hard labour. In the event that you are released sometime in the future then I order that your time already served in custody be taken into consideration by the appropriate authorities.

Kenneth Baupo having served eleven and half months in custody prior to sentence and Fabian Girida having served six months imprisonment prior to sentence.

Sentenced accordingly.

Lawyer for the State: PUBLIC PROSECUTOR.

Lawyer for the accused: PUBLIC SOLICITOR.