N2587

PAPUA NEW GUINEA

[In the National Court of Justice]

CIR No. 432 of 2004

Between:

THE STATE

And:

MATHIAS INABARI

WEWAK: GAVARA-NANU, J
2004: 17th & 20th February, 2004

CRIMINAL LAW - Manslaughter – Accused retaliating after his house and personal belongings were completely destroyed by the deceased – Accused connected to only one single blow to the deceased with bush knife – Accused not the only attacker – Deceased having no good reason for destroying the accused’s house – Special mitigating factors – Losing a house with all personal belongings is a great loss – Accused’s vanilla garden destroyed by deceased’s relatives – Such losses amounting to thousands of kina – Destruction of the accused’s vanilla garden was a punishment to the accused - Special report on the accused’s losses of vanilla compiled by Provincial Administrator’s Office – Due weight given to the report.

Cases Cited:
Rex Lealu -v- The State [1990] PNGLR 487
Gimble -v- The State [1988-89] PNGLR 271
The Public Prosecutor -v- Don Hale – SC564

Counsel:
M. Rurari for the State
A. Raymond for the Accused

SENTENCE

GAVARA-NANU, J: The accused is charged that he on 19th January, 2003, unlawfully killed one Marcus Mamau at Koitai village in the Dagua District of the East Sepik Province, contrary to s. 302 of the Criminal Code Act, Chapter No. 262.

The facts briefly are that, on the day of the offence, some men including the deceased consumed home brewed alcohol which resulted in a fight among themselves in the evening and caused a lot of disturbances to the villagers.

The accused was angry at the disturbances so he assaulted one of those who was drunk and fighting, but not seriously. The accused was not one of those who were drunk and fighting. The person who the accused assaulted was Kalitus Bomai. In retaliation to the assault on Kalitus Bomai, a person by the name of Hames Hauir Wogidu and the deceased destroyed the accused’s house with all of accused’s personal belongings. 

According to the State witness Martin Nalowari, several of accused’s relatives’ houses were also destroyed.

Following that, the accused mobilized his relatives and they attacked the deceased. During the attack, the accused cut the deceased on his left heel with a bush knife almost severing it. The accused’s relatives also cut the deceased with bush knives on the left wrist and the left leg. 

The accused and some of his relatives tried to take the deceased to the hospital, but before they could reach the hospital, the deceased died of severe blood loss.

According to the medical report, the deceased’s left wrist which was cut by the accused’s relatives was hanging loose and the blood vessels on the left leg where he was cut were severed. The bones were exposed by the cuts. 

The accused made no admissions in his Record of Interview, but he pleaded guilty before this Court.

Applying the sentencing guidelines in Rex Lealu -v- The State [1990] PNGLR 487, I find the following as aggravating factors:- 

1.	The weapon used was lethal.

2.	There were more than one direct and vicious blows to the deceased.

3.	The single blow to the left heel by the accused resulted in the deceased loosing a lot of blood.

Against these, I find the following as mitigating factors: -

1.	This was a group attack on the deceased, so the accused was not the only person who attacked the deceased. 

2.	There was strong de facto provocation in that the accused retaliated after his house was totally destroyed with all his personal belongings.

Apart from these, the accused also lost a lot of vanilla plants when the deceased’s relatives destroyed his vanilla garden following the death of the deceased. The amount of damage done was estimated in thousands of kina. This is documented in a report to the East Sepik Provincial Police Commander which was compiled by the East Sepik Provincial Administrator’s Office. The report was tendered in Court by consent.

The injuries suffered by the victim were gruesome, but I remind myself that only a single blow to the deceased was directly connected to the accused. In other words, not all the wounds sustained by the deceased were inflicted by the accused. I mention this to remind myself that the accused was not solely responsible for the death of the deceased.

The accused as I said, has suffered loss to his house, personal belongings and a vanilla garden. These were very significant losses. They in my view constitute special mitigating factors.

The accused is about 36 years old and single. He has been educated up to Grade 8. From 1981 to 1983, he attended the Aitape Training Institute and graduated as a motor mechanic. In 1984, he was employed by Niugini Nius as a mechanic in Port Moresby. He resigned from that job and joined Boroko Motors as a mechanic. He worked there until 1985, when he resigned. In 1986, he returned to his village. In 1991, he returned to Port Moresby and did a salesmanship course at Gerehu Training Centre. After that, he returned to his village. At the time of the offence, he was running a small business in his village.

He was arrested on 20th January, 2003, so he has been in custody for 1 year 1 month.

I have seriously considered imposing a long custodial sentence on the accused because of the very serious nature of the attacks on the deceased, which resulted in his death. But there are special extenuating circumstances, which in my opinion warrant lesser custodial sentence. The sentence I will impose is reflective of those special extenuating circumstances. For instance, the deceased was himself drunk and fighting and he was the one who first destroyed the accused’s house with all his personal belongings. Therefore when the accused mobilized his relatives and attacked the deceased, the accused was retaliating to that criminal act by the deceased. In noting these, I am not condoning the accused’s actions, but I note them as the reasons for his crime. 

The accused’s house was destroyed by the deceased because the accused assaulted one of deceased’s drinking friends. But that was no justification for the deceased to destroy the accused’s house with all its contents. Indeed, initially I thought the accused might have the defence of provocation but I decided against it because I think the accused’s actions were excessive in mobilizing his relatives and collectively attacking the deceased. Furthermore, the passage of time between the incidents was in my opinion sufficient for his passion to cool. 

It is to be noted also that some of the accused’s relatives who attacked the deceased were also retaliating because their houses were also destroyed by the deceased and his friend.

The pertinent factors which need to be emphasized are firstly, there was no need for the deceased to destroy the accused’s house because the person who the accused assaulted was someone other than the deceased. The assault was also not serious. In that regard, the deceased’s retaliation in destroying the accused’s house with all its contents was not warranted and without a good reason. It was also far too excessive even if he had a good reason. Secondly, and more significantly, to loose a house with all the belongings was a great loss for the accused, particularly the house because that was where he and his family lived and their lives evolved. The house not only provided security and shelter for the accused and his family, but it gave them privacy, which is a basic right under ss. 44 and 49 of the Constitution. The house also gave the accused dignity and status as a man among his peers and as a member of his community. It was the product of his labour and resources and it was an asset.

Besides loosing the house and the personal belongings, his vanilla garden was also completely destroyed by the deceased’s relatives. The damages amounted to thousands of kina. This is a relevant factor to take into account on sentence, because that in itself was a punishment to him because it was done following the death of the deceased. 

The importance of a dwelling house cannot be emphasized enough. Whether it is a mansion or a shack, a house is a castle to the owner or the occupant. The recognition given to the importance and the value of a dwelling house by the law is also evident in our Criminal Code. For instance, under s. 265 it is lawful for a person who is in peaceful and lawful possession of a dwelling house to use such force as is necessary to prevent forceful entry of the house. And under s. 436, setting fire to a building including a dwelling house carries maximum penalty of life imprisonment. Also in robbery cases, the robbery of the occupants of a dwelling house, whether at night time or during the day, when the occupants are sleeping or are simply in the enjoyment of the security and the privacy of their house, is regarded by the courts as the most serious type of robbery. This principle is reflected in Gimbles -v- The State [1988-89] PNGLR 271, where at 274 the Supreme Court said:

"We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is can invasion of privacy and family life. One of the basic rights enshrined in the Constitution is "protection for the privacy of their homes". A man’s home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values".

Then in Public Prosecutor -v- Done Hale SC. 564, the Supreme Court at pp. 2 and 3 of its judgment said: -

"We return to the particular sentence that the judge handed down here. The facts of the case were:

a group of men, the use of a shotgun to threaten and the gun was actually fired to deter the victims, the family were threatened at their house at night, property was stolen, whilst it only appeared to be a TV set the judge did note that to people living in settlement the value of a TV set would be very high.

The above facts immediately put this robbery into the most serious category namely the robbery of people in their house at night with the use of a firearm, and the trial judge actually noted these aspects of aggravation".

These utterances of the principle clearly give reinforcement and prominence to the value and the significance of a dwelling house in any given community. 

Therefore applying the principle to this case, and taking into account the special mitigating factors to which I adverted, I sentence the accused to 12 years in hard labour.

I will deduct the time spent in custody, which is 1 year 1 month. That leaves the balance of sentence at 10 years 11 months.

The accused will therefore serve 10 years 11 months in hard labour.
_______________________________________________________________
Lawyer for the State			:	Public Prosecutor
Lawyer for the Prisoner		:	Public Solicitor