N2444

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 1264 of 2003

THE STATE

-V-

SUMBIAKO WAPUKO

Mt. Hagen: Jalina J
2003: 15 & 31 July

Criminal Law – Murder – Sentence – Plea of Guilty to chopping deceased several times with bush knife – First Offender – Failure by persons other than deceased to pay compensation ordered by Village Court for someone other than deceased chopping off brother’s arm at wrist which led to prisoner attacking deceased - Deceased an innocent party - Criminal Code s. 300. 

Cases cited:
Simbe –v- The State, [1994] PNGLR 38,
The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997
The State –v- Haihavu Kori Kaiks, an Unreported National Court decision dated 21st April 1998,
Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated 13th December 2000,
Sap James Kumbapen –v- The State, (SCRA 14 of 2001), an Unreported Supreme Court Judgment dated 26th April 2001,
The State –v- Kore Ase, an Unreported National Court Judgment No. N2220 and dated 22nd June 2001.
The State –v- Peter Korak Siwi, (CR 1100/03) an Unreported National Court Judgment dated 30th July 2003.

Counsel:
J. Waine for the State
P. Kumo for the Prisoner

31 July 2003

JALINA J: You have pleaded guilty to a charge that on the 30th day of August 2002 at Kikita village, in the Tari area of the Southern Highlands Province you murdered one Andiki Talipe.

The facts of this case are that about 2 pm on the date in question, you approached the deceased while he was telling stories with a number of people and attacked him with a bushknife cutting him on his body several times. The deceased and those with him were unarmed and as such were unable to defend themselves.

The Medical Report shows that the deceased was referred to Pogera Hospital at 15.45 pm on the day of the attack. He had multiple lacerations to the limbs and face and was fully conscious but hypovolaemic distress. Surgery was conducted at 21.25 pm on the same day and the following injuries were noted:

(1)	Forehead wound, cut through the outer table of skull exposing bilateral frontal sinuses with fracture of the bony nasal bridge.
(2)	Severed extensor muscle organ at the left elbow.
(3)	Fractured right carpal bone at wrist.
(4)	Fractured middle right metacarpal.
(5)	Severed right extensor tendons, flexor capillaries, ulna nerve, artery and vein.
(6)	Lift haemopreumotheroax with lung induration.

At that time the following procedures were carried out by the hospital staff.

(1)	Reconstruction of skull bone and bony nasal bridge.
(2)	Repair of forehead muscle and skin.
(3)	Repair of muscle of left elbow.
(4)	ORIF right wrist joint and mid metacarpal.
(5)	Right tendons were not repaired pending status of wound.	
(6)	Left chest tube thoracotomy with small amount of blood drained.

On the following day, 31st August 2002 the patient was stable, and actively recovering. Peritoneal lavage was carried out due to distressed abdomen but was negative. Further surgery was conducted on 6th September 2002 to re-insert left chest tube. The drain was removed on 26th September 2002 and further surgery was carried out on 11th October 2002 to close the skin defect at skull fracture site.

Over the following month, the patient’s condition improved, however in late October he was noticed to be jaundiced and complained of restlessness. Then on 28th October 2002 he had bleeding from the mouth and had loose watery stools, bloody diarrhoea and dark coloured urine. On examination, he was drowsy and jaundiced with a tender distended abdomen. At this time, a diagnosis of acute liver failure was made.

Some other steps were taken to save his life but his condition deteriorated and he died at 03.30 hours on 30th October 2002.

The cause of death was Acute Liver Failure due to Hepatitis with additional cause being multiple knife wounds. 

The maximum penalty for murder is life imprisonment under s.300 of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s. 19 of the Code. The prescription by the legislature of the penalty of life imprisonment reflects the seriousness with which it viewed this crime. Such a penalty no doubt reflects the importance the legislature has placed on the sanctity of human life. So to reflect the seriousness of such a crime the courts have exercised their sentencing discretion under s. 19 by the imposition of long periods of imprisonment.

For instance in Simbe –v- The State, [1994] PNGLR 38, the 14 year sentence imposed on the appellant who killed the deceased with a bush knife instantly when he saw the deceased enticing his wife into having sex with him was found by the Supreme Court not to be excessive. 

In The State –v- Peter Plesman and Paul Moaina, an Unreported National Court Judgment No. N1657 dated 30th October 1997 Batari, AJ. (as he then was) sentenced the prisoners to 25 years imprisonment for the murder of brothers Ephraim Makis and Albert Uming inside their residential area. Ephraim Makis was shot at point blank range and Albert Uming was stabbed in the back several times.

In The State –v- Haihavu Kori Kaiks, an Unreported National Court judgment dated 21st April 1998, Los, J. imposed 23 years imprisonment on the prisoner who scaled the walls to the 4th floor of the Lodge Apartment, Hunter Street in Port Moresby and stabbed a geologist to death in the presence of his wife inside their apartment. In imposing the sentence the trial judge stressed that the offence was committed after invasion of the deceased’s private home or dwelling which was in effect done in breach of the deceased’s right to privacy of his home which was guaranteed under the Constitution.

In Jeffrey Harold Malepo –v- The State, an Unreported Supreme Court Judgment dated 13th December 2000, the Supreme Court dismissed the appellant’s appeal against a sentence of life imprisonment for murder. In that case the deceased was killed when she was tangled in the seatbelt of her vehicle and was dragged along the bitumen road for three Kilometres after her vehicle was taken from her by the prisoner and his colleagues.

Her body was badly mutilated. In dismissing the appeal against sentence of life imprisonment, the Supreme Court accepted that the murder in those circumstances was among the "worst murder" case.

In Sap James Kumbapen –v- The State, (SCRA 14 of 2001), an Unreported Supreme Court judgment dated 26th April 2001, the Supreme Court dismissed an appeal against both conviction and sentence of life imprisonment for murder where the appellant chopped the deceased with a bushknife after gaining entry into the residence where the deceased was staying that night with his brother after falsely pretending that he was being chased by some people from four –mile near Kainantu in the Eastern Highlands Province.

In The State –v- Kore Ase, an Unreported National Court judgment No. N2220 and dated 22nd June 2001, I sentenced the prisoner to 15 years imprisonment for murdering the deceased by chopping him on the head, neck and other parts of the deceased’s body with a bushknife. 

In The State –v- Peter Korak Siwi (CR 1100/03) an Unreported National Court judgment dated 30th July 2003 which was this week, I sentenced the prisoner who was said to be a violent person, to 16 years imprisonment for stabbing his wife to death after a domestic argument.

The above cases clearly demonstrate the seriousness with which both the National and Supreme Courts view the crime of murder.

In considering the penalty I should impose, I have taken into account the provisions of the Criminal Law (Compensation) Act 1991 and am of the view that compensation is not an appropriate penalty for the crime of murder. In fact, in my view, compensation should not be the penalty for any offence of homicide where weapons are used or where human life is lost through some deliberate act of another person except in wholly exceptional circumstances.

I have also taken into account in deciding the penalty I should impose your statement on the allocutus, your personal antecedents and the submissions made by your lawyer in mitigation of sentence. 

In your statement on the allocutus you said that you attacked the deceased because your brother’s hand was chopped off at the wrist and that they failed to pay compensation ordered by the Village Court. The statement of David Andiki shows however that the person who cut off your brother’s hand was Tindipu and not the deceased Andiki Talipe. So Andiki Talipe was an innocent man that you had mercilessly chopped several times and killed as is shown by the medical report. 

The sentence I therefore consider appropriate in all the circumstances is a period of imprisonment of 20 years in hard labour bearing in mind that you pleaded guilty in addition to the other mitigating factors put to the court by Defence Counsel. 

I deduct from that sentence the 8 months and 3 weeks you have spent in custody which leaves 19 years 3 months and 1 week you have to serve in hard labour.
____________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Prisoner	:	Public Solicitor