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State v Koi [1986] PGNC 14; N575(S) (10 December 1986)

N575(S)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V.

KUNDI KOI

Mount Hagen: Wilson J
9-10 December 1986

CRIMINAL LAW - SENTENCE - WILFUL MURDER - PAYBACK KILLING - NEED TO CONSIDER ALL FEATURES OF OFFENCE AND OFFENDER. NEED FOR RETRIBUTIVE and deterrent sentence - can be met by fixed sentence.

Life sentence not mandatory in worst category classification but should be considered.

Cases referred to:
Ure Hane v The State [1984] PNGLR 105
Public Prosecutor v Apava Keru and Aia Moroi SC 289

SENTENCE

WILSON J: You have pleaded guilty to the crime of wilful murder.

On 27 August 1986 you heard that your brother had been killed by enemy tribesman from Jiga Komp line. You immediately decided in your grief and anger at your brother's death that you would avenge his death by killing a tribesman from that line.

It is clear that you went with others and found the deceased, you chopped him and chased him on the vehicle he was using to try to get away. You chased him down to a creek and there you chopped him again with your axe and killed him. He was not the man who killed your brother.

In your talk to me you said that you were very worried about your family and who will look after them. This is not something I can give great weight to in deciding your punishment. You should have thought of this before killing this man. Indeed you say in your Record of Interview that you wanted to kill an enemy tribesman, or two, and that you would then die and join your brother. Now, as you face your punishment you ask me to help you because of your family's suffering. The fact is that this man you killed has a family and you have caused them great hardship but you still have your life.

Your crime was very serious. I take into account that you acted straight away in the grip of distress, anger and grief. In your society these are compelling emotions which inevitably override common sense and restraint and I think I must consider the impact of this on you bearing in mind your own social background which at this time included a tribal state of war in your area which would have its own tensions and formative reactions.

I have considered what was said in Ure Hane v. The State [1984] PNGLR 105 and Public Prosecutor v. Apava Keru and Aia Moroi SC289. I do not take either case as laying down a tariff of life sentence in all the categories of serious wilful murder discussed. I believe that all judges should still retain a discretion which is to be exercised in each individual case. Indeed, I have considered whether I should impose a life sentence on you.

I have had the opportunity of assessing you from your appearance in Court, your forthrightness on the allocutus and your plea for mercy. There must be retained in the Courts power the elements of mercy and compassion, which will have an impact on the sentence.

Equally important are the elements which require that harsh penalties be meted out when the crime is such that society demands retribution and service to the concept of public deterrence.

I believe that these equally important and distinct criteria can be met by the imposition of a fixed sentence.

You are sentenced to 16 years in hard labour, you have served three months waiting for the Court, you have 15 years nine months left to serve.

Lawyer for the State: A/Public Prosecutor
Counsel: Joseph Mek Teine
Lawyer for Defendant: A/Public Solicitor
Counsel: David Poka