State v Yakop [1993] PGNC 3; N1143 (5 March 1993)

Unreported National Court Decisions

N1143

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
KANDAP YAKOP

Mount Hagen

Woods J
4-5 March 1993

CRIMINAL LAW - Sentence - Wilful Murder - Life Imprisonment.

Cases cited:

The following case is cited in the Judgement.

Ure Hane v The State [1984] PNGLR 105.

Counsel:

J Kesan for the State.

K Kot for the Defendant.

JUDGEMENT ON SENTENCE

WOODS J: Kandkop you have been foun found guilty of the wilful murder of Bepi Sagalias. You have been found guilty of deliberately intending to kill and killing the deceaseds killing took place on 25th March 1991.

The penaltynalty for wilful murder under S. 299 of the Criminal Code at the time this offence was committed was life imprisonment. Of course under S.19 of the Code there is always the discretion in the Court to impose a term of years. However one must take into account that the penalty of life imprisonment also applies to 2 other offences of unlawful killing, namely murder under S. 300 and manslaughter under S 302. Now a term of years is usually given for manslaughter, a term in the lower range, and also a term of years is given for murder. So when is life imprisonment appropriate - for the worst type of killing. But what can be worse than a deliberate killing namely wilful murder. In the case Ure Hane v The State [1984] PNGLR 105 the Supreme Court considered when life imprisonment should be imposed for wilful murder and there was a suggestion of various categories of worst type of murders. That case was now ten years ago and in the last few years the people and the Parliament have expressed their concern over the punishment for killing, and Parliament has even indicated quite clearly that even life imprisonment is not enough by changing the law to the death penalty. All this must mean something - that Parliament as the expression of the concern of the people is insisting on the heaviest of punishments for wilful murder. So whilst there can be no argument that terms of years as appropriate to the circumstances can be applied to the accidental killings which is often what manslaughter is categorised as, and even terms of years for murder under S. 300 of the Code where there is more deliberate dangerous acts, but when we look at the deliberate killing of someone there can be only one punishment - life imprisonment - as how can anyone be sure that a person who deliberately does it once may not do it again. Society is entitled to some protection. The Court is always aware of The Power Of Mercy procedure in the Constitution whereby an Advisory Committee is able to make appropriate recommendations for life term prisoners after a number of years. I cannot question that power, but I am not in the position to consider such matters now I have before me right now a man who has deliberately killed. I just cannot take the risk with him for Society.

Parliament has legislated life imprisonment for wilful murder. I cannot ignore that nor the relativity of wilful murder with the other degrees of killing.

I am not ignoring Section 19 of the Code but surely that requires extenuating circumstances in so far as one can possibly find extenuating circumstances in the deliberate killing of someone. However perhaps the Christian principles embodied in the Constitution would let me impose a term of years where there has been truth and contrition such as in a plea of guilty. And the courts could be lenient in the special circumstances of a difficult domestic situation. Note here that in the Ure Hane case mentioned above where a sentence of life imprisonment was reduced to 15 years imprisonment it was a plea of guilty and a difficult domestic situation. In the case before me now there has been no contrition, there has been no plea of guilty, there are no special domestic circumstances which I feel warrant any leniency. The defence did raise some suggestion of a history of mental problems but the psychiatric report does not support that. The defence has submitted that the motive is too vague, but the motive does not necessarily matter, and actually if there is a very weak motive or no motive at all society could be more concerned at the dangers such a person could be to the community. Therefore the law is quite clear, life imprisonment must be applied. I find there are no extenuating or special circumstances which could lead me to consider anything less than life imprisonment.

I sentence you Kandap Yakop to life imprisonment