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 1991 the maximum penalty for this offence use to be one of life imprisonment. By Act No 25 of 1991, the maximum sentence was increased to one of death. To my knowledge this sentence has not been handed by the National Court maybe because the administrative machinery for carrying out the death sentence is not in place.

The crime of wilful murder is one of the most serious crime of all other crimes defined in the Criminal Code. The maximum sentence of death 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 killing. The deceased was an elderly man who was completely innocent and who was unarmed. He was attacked by the four of you in concert without warning. Sukulin Passomb first shot the deceased with a gun. The deceased sustained superficial wounds at his back which measured 7cm radius. Then Kalain Kula speared him at his left chest. The spear pierced the pericardium and left ventricle of the heart causing internal bleeding. This was followed by Angaun Kakas who shot the deceased but missed him because of the disability associated with his right hand. Finally, Kakalia Tulu axed the deceased on his right chest. The wound measured 6cm in length. It entered the pleural cavity and fractured three ribs and laceralted some veins. In accordance with the medical report of Dr Watts, I have found that the main cause of death was the spear wound of Kalain Kula. The other wounds were serious and they contributed to his death “but on their own would probably not have been fatal”. I have found that you acted in concert in aid of each other in the prosecution of a common purpose under S.7 and S.8 of the Code. All of you are liable to the same punishment as Kalain Kula. And so as far as the extent of your involvement is concerned in terms of intention to cause the death of Kurai Kindi Kindi, there is not much to distinguish them.

All of you have little or no formal education. You come from a society where traditional values and ways still play a predominant role in your way of life. This explains why you reacted without prior pre-planning upon hearing the death of your clansman, Kijia, that morning. This also explains the fact that you killed an innocent man whom you thought to be an enemy clansman.

There is also not much difference in the personal background of the four of you. Except for Angaun Kakas who is aged around 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 Community. Angaun Kakas is an elder in the village and a Deacon of Mamale Apostolic Church. Kakalia Tulu is a Village Court Clerk of Laiagam Village Court having got the job in 1990. Sukulin is a youth member and associated with the Apostolic Church youth at Mamale. Kalain Kula is a Village Peace Officer with Laiagam Village Court. You all have no prior convictions.

You are all married and have dependants to look after. Angaun has five (5) children. Kakalia has six (6) children of which one is dead. Your first child is doing Grade 7 while his second and third child are in Community School. Sukulin has two children. Your wife is young and your mother is very old. Kalain is married with no children. You have no brothers. Your only surviving parent is your old father. You are all concerned for the welfare of their children and surviving parents.

You all voluntarily surrendered yourselves to police at Laiagam when your names were mentioned by police.

You have all asked me to be lenient to you in my sentence. I accept all the above factors as mitigating factors. I will take them into account in your favour in considering sentence.

I must also take into account the interest of the community. As I said in my judgment, this is a case of brutal killing of an unarmed and innocent man in broad day light for no reason. It is not a good thing. It is the practice of uncivilized people. Such practice must be discouraged by the Courts. This cannot be achieved unless a strong deterrent and punitive sentence is imposed on the offenders. That is what I intend to do in this case.

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

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

· Angaun Kakas: 10 years less 5 months 2 days in custody.

· Kakalia Tulu: 15 years less 5 months 2 days in custody.

· Sukulin Passomb: 12 years less 5 months 2 days in custody.

· Kalain Kula: 14 years less 5 months 2 days in custody.

You have offered to pay K1,500.00 plus 80 pigs each valued at K200.00. I am required by the Criminal Law (Compensation) Act 1991 to take that into account. You have all offered to make these payments as a group. I am told that these payments will be made by your relatives. For my purposes, I would express the payments offered in pigs in money terms. The total payment offered is K17,500.00. I would also divide this amount into equal amounts between the four prisoners. Hence I take it that each prisoner is offering to pay K4,375.00. This amount is within the maximum amount of K5,000.00 prescribed by Section 5 of the Act. The maximum default penalty prescribed by the Act for value of compensation exceeding K3,000.00 is six (6) months imprisonment.

I would make the following orders in respect of compensation:

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

Lawyer for the State: Sir Kina Bona Public Prosecutor

Lawyer for the Accused: Ellenas Batari Public Solicitor