State v Kakas [1994] PGNC 8; N1219 (28 March 1994)

Unreported National Court Decisions

N1219

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 18 OF 1994(H)
THE STATE
v
ANGAUN KAKAS, KAKALIA TULU, SUKULIN PASSOMB & KALAIN KULA>

Mount Hagen

Injia AJ
16 MARCH 1994
19 MARCH 1994
21 MARCH 1994
23 MARCH 1994
25 MARCH 1994
28 MARCH 1994

Counsel:

J Kessan for the State

B Tabai for the Prisoners

SENTENCE

28 March 1994

INJIA, AJ: I have found each of you guilty of wilful murder of one Kurai Kindi Kindi contrary to S. 299 (1) of the Code. Prior to 1991maximum penalpenalty for thfence use to be one of life imprisonment. By Act No 25 of 1991, the maximum sentence ence was increased to one of death. knowledge sentence has noas not been handed by the Nationational Court maybe because the administrative machinery for carrying out tath sce is not in plac place.

The crime of wilful murder is one of the most serious crimecrime of all other crimes defined in the Criminal Code. The maximum nce of death jath just shows how serious the crime is regarded by the people in Papua New Guinea today.

I have covered the circumstances of the killing in my judgment which I handed down today. It is a brutal killing0; T60; The deceased was an elderly man who was completely innocent and who was unarmed. He wascked by the four of r of yoconcert without warning. Sukulin Pasfirst shot the the deceased with a gun. Th0; The deceased sust supd superficial woun his back which measured 7cm radius. Thenin Kula Kula speared hred him at his left chest. The spear pierhe pericardicardium ant ventricle of the heart causing internal bleeding. T60; This was followeAngauAngaun Kakas who shot the deceased but missed him becaf the disability associated with his right hand. Fina Finally, Kakallu axed axed the deceased on his right chest. The wouasured 6cmength.&#1h. #160; It entered theral cavl cavity and fractured three ribs and laceralted some veins. In accordanch thecal report of Dr f Dr Watts, I have found that the main cause of death was the spear wound ound of Kalain Kula. The other wounds werious hnd they contributed to his death “but on their own would probably not have been been fatal”. I have found tha acteconceconcert in aid of each other in the prosecution of a common purpose under S.7 and7 and S.8 of the Code. All of you arble t same pume punishment as Kalain Kula. And so as far as the exte t of your involvnvolvement is concerned in terms of intento cause the death of Kurai Kindi Kindi, there is not much to distinguish them.

All oAll of you have little or no formal educat#160; You come from a sociesociety where traditional values and ways still play a predominant role in your way of life. This exs why you reacted wted without prior pre-planning upon hearing the death of your clansman, Kijia, that morning. This also ins tct that yout you killed an innocent man whom you thought to be an enemy clansman.

There is also not much difference e personal background of the four of you. Except for Angaun Kako is o is aged around ound 50 years old and Sukulin Passomb who is aged about 29 years old, the other two are aged in their 30's. You are all leaders of some kind in the Mamale Communityaun Kakas is an elder in thin the village and a Deacon of Mamale Apostolic Church. Kakalia Tulu is aage CourtCourt Clerk of LaiVillage Court having got the job in 1990. Sukulin is n is a youth member and associated with the Apostolic Church youth at Mama160; Kalain Kula is a Village Peace Officer with Laiagam Viam Village Court. You all have no prior ctioictions.

You are arried and have dependants ants to look after. Angaun has five (5) cen.&#en. Kakalia has six (6) chn ofen of which one is. Your fihild is doing GradeGrade 7 while his second cond and third child are in Community School. Sukuls two childr160; wife wife ung andg and your mother is very old. KalaiKalain is married with no children. 160; You have no bro.&#160 Your onlyiving parent is oour old father. You are all cnecerned for for the welfare of their children and surviving parents.

Youvoluny surred youd yourselves to police at Laiagam when youn your names were mentioned by police.

.

You have all asked me to be lenient to you in my sentence. I accll the above factors tors as mitigating factors. I will take thto account iunt in your favour in considering sentence.

I must also take into account the interest of the community. As d in my judgment, this this case of brutal killing of an unarmed and innocent man in b in broad day light for no reason. It is good thing. I60; It e practicencivilizvilized people. Such pre must must be disc discouraged by the Courts. This cannot be aed unless less a g dett and punitive sentence is imposed on the offendefenders. That is what I d to doto doto do in this case.

In considering the sce I have had regard to the mitigating factors I have set oset out above. As to your concern regarding your dependants, I think are normal consequences whes which befall on any offender and I do not intend to place too much weight on them.

I have had reto the nature of the wound inflicted by each one of you andu and the type of weapon used. I havo had regard to sentesentences imposed by other judges of the National Court in these kind of killings as in 1993 in which sentences in a contested case ranges 15 - 10 years to life imprisonment. I consider an appn appropriate sentence for each of you is as follows:

· ;ټ < < Angaun Kak0 years less 5 ms 5 months 2 days in custody.

·
#116060; 160; 160; KakalKakalia Tulu: 15 years less 5 months 2 days in custody.

·#183;&#160 Snkuli 1mb:less 5 mo ths 2ths 2 days in custody.

·#183;&#160 ;ټ K60; Kalain Kula: 14a: 14 years lesonthsys inody.

You offeo pay K1,500.00 plu0 plus 80 s 80 pigs pigs each each valuevalued at d at K200.00. I am required b Criminal Lnal Law (Compensation) Act 1991 to take that intount. You have all ofll offered to make these payments as a group. told that these payments wnts will be made by your rels. For myoses, Ies, I would euld express the payments offered in pigs in money terms. The total payment ed is K1is K17,500.00.; I walso divide this this amount into equal amounts between the four prisoners. Hence I te I take it thah each prisoner is offeringay K4,375.00. This amount is within aximmaximum amounamount of K5,000.00 prescribed by Section 5 of the Act. The maximum lt penaltycribscribed by the Act for value of compensation tion exceeding K3,000.00 is six (6) months imprisonment.

I would make thlowing orders in respect of compensation:

That each of the four prisoners pay K3,0003,000.00 each to the immediate relatives of the deceased within six (6) months. If they pay this amotheir heir respective sentences should be further reduced by six (6) months.

Lawyer for the State: Sir Kina Bona Public cutorcutor

Lawyer for the Accused: Ellenas Batublic Soli

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