N2202

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 236 OF 2001

THE STATE

-v-

IPAKAIA EPA

Wabag	:	Jalina J.
2002		:	3rd & 8th May

Criminal Law – Unlawful killing – Sentence – Death from stabbing with kitchen knife – Plea of guilty – First offender – Advanced age of 60 years – Taking someone’s life prematurely very serious - Unlawful killing from use of weapon more serious than death from ruptured spleen as it shows determination and total disregard for the risk of death and bodily injury to victim – Sentence higher than that for spleen death warranted – Criminal Code s.302.

Cases cited:
The State –v- Samuel Benimo [2002 - Popondetta] Unreported National Court Decision in CR 273/2002 dated 18th April 2002.

Counsel:
Mr. S. Kesno for the State
Mr. P. N’dranoh for the Prisoner

8th May 2002

JALINA J.:	 You have pleaded guilty to one count of unlawfully killing one Nei Ipakaia at Porgera in the Enga Province on 28th June 2001. The deceased was one of your sons. The offence was committed during a domestic argument over some pigs which were given as bride price for your daughter and his sister. In the course of the argument both of you grabbed each other and in the course of a struggle you both fell to the ground with you lying face up and your son lying on top of you. You then pulled out a kitchen knife from your bag and stabbed your son a number of times from which he died at the scene.

The Medical Report of Dr. Harald Giebel reveals a number of injuries on the deceased’s body. There was a deep laceration measuring 4 x 3 cm at left anterior chest through the ribs, right over the heart. Another similar deep laceration was at the right posterior chest above the costal margin. Additional laceration was at the left wrist and the base of the left thumb. The cause of death was exsanguination due to stab wound in the heart.

The maximum penalty for this offence is life imprisonment under s.302 of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code. Although it is within the Court’s power to impose the maximum penalty in an appropriate case, the practice of the Court has been to impose a term of years. The length of such term depends on the circumstances of each case.

In your statement on the allocutus, you told the Court how the argument you had with your son started and led to you stabbing him but you expressed no remorse at all. In his plea for a lenient sentence, Defence Counsel, Mr. N’dranoh has relied on mitigating factors such as your plea of guilty, your lack of prior convictions, provocation in the non-legal sense, your old age and the stigma that would be with you throughout the rest of your life at having killed your son.

In deciding the sentence I should impose, I repeat what other judges and myself have said in the past that taking someone’s life prematurely for whatever reason is very serious and the length of sentence imposed will depend on the circumstances of death including what it was that the accused did in bringing about the death of the deceased.

In The State –v- Samuel Benimo [2002] Unreported National Court Decision in CR 273/2002 dated 18th April 2002, in Popondetta, I said:

"I would consider unlawful killing through the use of a weapon to be more serious than unlawful killing, say through a kick resulting in the rupture of the spleen. Unlawful killing through the use of a bush knife, grass knife, axes and so on to my mind indicates determination and total disregard for the risk of death or causing bodily injury to the victim and as such a higher sentence than that normally imposed for spleen death manslaughter would be warranted." 

In the present case, whilst I appreciate that while fighting you as an old man was no match for your son who was stronger at the age of 25 years, you used a knife against him when he was unarmed. In fact, there was no evidence from bystanders that he was continuously assaulting you. Statements from witnesses show that he was lying on top of you when you stabbed him. The stabbing was also not done once but several times as if he was a stranger and as if your life was in danger.

Considering what I said in The State –v- Benimo above regarding manslaughter from use of dangerous weapons, I would have sentenced you to imprisonment for a period of about 12 years as in Benimo’s case if not for your old age of about 60 years and the stigma with which you no doubt will live for the remainder of your life for killing your own son. So the sentence I consider appropriate in all the circumstances of this case is a period of 9 years imprisonment in light labour which I so impose. I deduct from that sentence the 10 months, 1 week and 3 days you have spent in custody which leaves 8 years, 1 month, 2 weeks and 4 days which you will serve at Baisu Corrective Institution in light labour.
_____________________________________________________________________
Lawyer for the State			-	Public Prosecutor
Lawyer for the Prisoner		-	Public Solicitor