State v Lupu [1996] PGNC 58; N1545 (16 December 1996)

Unreported National Court Decisions

N1545

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 576 OF 1996
THE STATE
v
IVORO KAUMIN LUPU

Waigani

Batari AJ
16 December 1996

CRIMINAL LAW - Sentence - Murder - Plea - Deceased stabbed with knife - Sentence higher than starting point for uncontested murder with no aggravating features or with mitigating factors is appropriate.

CRIMINAL LAW - Sentence - Plea - “Old age” - Whether it is a mitigating factor in murder - Accused aged 60 years - Sentenced to 8 years.

Cases Cited:

The State v Laura (2) [1988-89] PNGLR 98

PP v Apava Keru & Anor [1985] PNGLR 78

Sentence

On a plea of guilty to one count of murder, the following judgment was delivered on sentence.

Counsel:

P Kaluwin for the State

J Ulge for the Accused

16 December 1996

BATARI AJ: You have been indicted of the murder of Francis Kime Upi on 15 December, 1995 at Gorobe Settlement, at Badili in the National Capital District. I have convicted you upon your plea of guilty and I must now pass sentence.

On the night of 15 December, 1995 you attended a gathering at a resident at the Gorobe Settlement to discussrty that would be held the following day. A fight arot arose be you you and the deceased with another person. The deceased lee gatheringering area with the other person but returned when someone called after them and uttered something which appeareanger. A second cond fight ensued resulting in the deceased being stabbed in the upper lefr left chest with a knife. You were the p who stabbedabbed the deceased. The medical report showed the deceased died from haemopneumothorat or collection of air inchest-cavity due to pierced left upper lung.

The crime of murder carries life imprismprisonment. The maximum penalty preed speaks for the seriousneousness of the offence and also for the preservation and protection by law of the sanctity of the human li160; The law says everyone has a right to live and no one is to deprive another of his righ right to life except in circumstances that are lawful for him to do so. There was no excuse for what you did. The consequence of yonductnduct has been a premature end to a young life. At 28 yeahe deceased may ymay yet live the same number of years. You havrived him of futup>utup>

The use of e of a weapon, in particular a knife put yput your crime in the more serious category of murder cases when I consider theting point for uncontested murder with no aggravating featufeatures or with mitigating factors is six years as suggested in the case of The State v Laura (2) [1988-89] PNGLR 98. Your case falve that startstarting point. Itbeen warned in this Cour Court time and again that sentences for murder cases will increase. Thrning has been in responesponse to the prevalence of sr kil and the need to d to mark the community disapproval of sucf such crimes by heavy penalties. The botine however is that that I sentence you on the particurticular facts of your case.

You are aged about 60 years old in my observation. Your lawyer hged mconsidersider your age as a relevant factor in mitigattigation. In the English text of Thomas’ Principles of Sentenc2nd Ed. 1979) old age is discussed as a mitigating factor. On p. 196 learned autd autd author states:

“Age begins a relevant consideration again once the offender has passepassed 60, although at this end of the spectrum it is most effective as a ating factor when combined ined with another, such as good character. In Wilkinson a man of 60 lppealed against sentences totalling five years for offences of indecency committed over a period of several years with his young grandnieces. The Court oed thile ‘#8216;a substantial custodial sentence’#8217; was inevitable, the appellant had a ‘perfectly good’ reand the offences began when he became a ‘desperately lonely’ widower. Sta; Stating ‘no couo court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison’. The Creduced the sentence ence trty months. In Bishop the Court redu sd a sentence ofce of fifteen months for an ‘extremely serious’ tax fraud on aof 61 with the highest personal reputation’, not beca because the sentence was ‘in any way wrong in principle but simply as an act of mercy to this man at this stage of his life’.”

The Supreme Court in the case of PP v Apava Keru and Aia Moroi [1985] PNGLR 78, however held reservations about this principle being applicable to murder as in England, murder offences carry a mandatory life sentence. The reservation was exed ssed simply because the question was not fully argued. So gely speaking, old age age may not be a mitigating factor on sentence for murder. In the matter e, I am not not convithat uld take exceptioeption to the reservation in Apava Keru and Aia Moroi’s case as the the question of age as a mitigating facto not fully argued.

You have no formal education and and were unemployed at the time of your arrest. You have six childr160; Th0; There is no indication whether you live in the City or you were just visiting. Whatevur situation, you noou no dknew and fully understand the unlawful nature of your conduct.

I have also taken intn into account your plea of guilty which ites remorse to some extent. Thiyour first conviconvictnviction. At your age, this meant you have had a relatively good background. You voluntarily surrendered to the police and made admissions from the start. I have regaso to your cust custodiod of twelve months which I will deduct from the head sent sentence.

Your crime was committed out of a situation which involved soements of provocation as a fact. On the other hand thnd the facts surrounding this killing showed you are a man with a violent nature. You used a stick to hitrsoperson on his shoulders. Youbed the same person on n on his thigh with a knife befou used the same knife to s to stab the deceased. However, I will sentenc onou only for the murder charge.

I propose to imposentence which will serve thve the effect of retributive and deterrence.

In all the circumstances, I sentence you to eight yearrisonment IHL. I dedu deduct twmonths fors for the time spent in custody. You are to serve sevars imrs imprisonment IHL.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor