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 discuss a party that would be held the following day. A fight arose between you and the deceased with another person. The deceased left the gathering area with the other person but returned when someone called after them and uttered something which appeared to anger them. A second fight ensued resulting in the deceased being stabbed in the upper left chest with a knife. You were the person who stabbed the deceased. The medical report showed the deceased died from haemopneumothorat or collection of air in the chest-cavity due to pierced left upper lung.

The crime of murder carries life imprisonment. The maximum penalty prescribed speaks for the seriousness of the offence and also for the preservation and protection by law of the sanctity of the human life. The law says everyone has a right to live and no one is to deprive another of his 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 your conduct has been a premature end to a young life. At 28 years, the deceased may yet live the same number of years. You have deprived him of that future.

The use of a weapon, in particular a knife put your crime in the more serious category of murder cases when I consider the starting point for uncontested murder with no aggravating features or with mitigating factors is six years as suggested in the case of The State v Laura (2) [1988-89] PNGLR 98. Your case fall above that starting point. It has been warned in this Court time and again that sentences for murder cases will increase. That warning has been in response to the prevalence of similar killings and the need to mark the community disapproval of such crimes by heavy penalties. The bottom line however is that I must sentence you on the particular facts of your case.

You are aged about 60 years old in my observation. Your lawyer has urged me to consider your age as a relevant factor in mitigation. In the English text of Thomas’ Principles of Sentencing (2nd Ed. 1979) old age is discussed as a mitigating factor. On p. 196, the learned author states:

“Age begins to be a relevant consideration again once the offender has passed 60, although at this end of the spectrum it is most effective as a mitigating factor when combined with another, such as good character. In Wilkinson a man of 60 appealed against sentences totalling five years for offences of indecency committed over a period of several years with his young grandnieces. The Court observed that while ‘a substantial custodial sentence’ was inevitable, the appellant had a ‘perfectly good’ record and the offences began when he became a ‘desperately lonely’ widower. Stating that ‘no court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison’. The Court reduced the sentence to thirty months. In Bishop the Court reduced a sentence of fifteen months for an ‘extremely serious’ tax fraud on a man of 61 with the highest personal reputation’, not 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 expressed simply because the question was not fully argued. So generally speaking, old age may not be a mitigating factor on sentence for murder. In the matter before, I am not convinced that I should take exception to the reservation in Apava Keru and Aia Moroi’s case as the question of age as a mitigating factor was not fully argued.

You have no formal education and were unemployed at the time of your arrest. You have six children. There is no indication whether you live in the City or you were just visiting. Whatever your situation, you no doubt knew and fully understand the unlawful nature of your conduct.

I have also taken into account your plea of guilty which indicates remorse to some extent. This is your first conviction. 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 regard also to your custody period of twelve months which I will deduct from the head sentence.

Your crime was committed out of a situation which involved some elements of provocation as a fact. On the other hand the facts surrounding this killing showed you are a man with a violent nature. You used a stick to hit a person on his shoulders. You stabbed the same person on his thigh with a knife before you used the same knife to stab the deceased. However, I will sentence you only for the murder charge.

I propose to impose a sentence which will serve the effect of retributive and deterrence.

In all the circumstances, I sentence you to eight years imprisonment IHL. I deduct twelve months for the time spent in custody. You are to serve seven years imprisonment IHL.

Lawyer for the State: P Mogish Public Prosecutor

Lawyer for the Accused: D Koeget A/Public Solicitor