N4546

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 319 of 2011

THE STATE

V

PHILEMON KIYABE

Goroka: Yagi J
2011: 20th & 21st June

CRIMINAL LAW – Sentence – particular offence –failing to report a killing – Criminal Code Act, s. 309(1)(c) – guilty plea – first-time offender –young offender – sentence of 6 months appropriate – pre-trial custody more than 6 months – sentenced to rising of the court.

Cases Cited:

The State v Henry Kendari – CR No. 94 of 2011, unreported and unnumbered judgement of Yagi J at Goroka dated 21st June 2011.

Counsel:

V. Mauta, for the State
R. Kasito, for the Prisoner

SENTENCE

21st June, 2011

1. YAGI J: The accused is the co-accused of Henry Kendari who I sentenced just a moment ago: See The State v Henry Kendari – CR No. 94 of 2011, unreported and unnumbered judgment of Yagi at Goroka dated 21st June 2011. Both are separately indicted and hence are being dealt with in that manner. He also pleaded guilty to the same charge of failing to report a killing to the police under s. 309(1)(c) of the Criminal Code.

2. The accused is aged 25 years. He comes from Tani Walete village, Tari, Southern Highlands Province. He is unmarried. His father had passed on and his mother is alive in the village. He is the only sibling in the family. He is a recent graduate teacher and was teaching at a local community school in Tari at the time of the offence. He belongs to the Evangelical Lutheran Church faith.

3. The facts are exactly the same as in Henry Kendari case (supra). For more detailed understanding of the facts refer to Henry Kendari's judgment (supra). However, for the present purposes I shall refer to only the relevant facts.

4. The accused recently graduated from college and commenced his teaching career in 2010. He was into his 6 month of teaching. As is usual with the government system, he faced salary problems and wanted to travel to Port Moresby to sort out the problem. He found a cheaper way of travelling to Port Moresby; first by road to Lae and then by air to Port Moresby. He took the opportunity to hitch a ride with Henry Kendari on that trip to Lae.

5. He was therefore at the discretion of Henry Kendari during the journey. He had no power or authority in respect of the movement of the vehicle.

6. He was in the vehicle that returned to the scene where the dead body was in Henganofi. He knew that there was a killing. It appears at that stage the information as the cause of death was sketchy. However, he was part of the group with Henry Kendari that were told to report the killing to Henganofi Police Station.

7. When the vehicle travelled to Henganofi Station, it did not stop and therefore no report was made at the Henganofi Police Station. The reason was because a drunken passenger directed the vehicle not to stop. When the vehicle reached Kainantu, the accused disembarked and jumped on a PMV Bus and continued his journey to Lae. He jumped on a plane and travelled to Port Moresby. He was apprehended in Port Moresby and subsequently repatriated to Goroka to face the charge.

8. The mitigating factors are that he pleaded guilty, he is a first offender, he is a young offender and he cooperated with the police. 

9. The only aggravating factor is that he failed to report the killing to Kainantu Police Station.

10. In applying the considerations discussed in the Henry Kendari's case (supra) I do not think this case is as serious as the Henry Kendari case (supra) because he was not in a position to control the movement of the vehicle, as in the Henry Kendari case (supra). It seems to me that he is a victim of circumstances. I listened to him in allocutus and his plea for leniency had a great deal of zeal. I accept his account as to the underlying reason for his wanting to travel. The most pressing issue for him was his salary. He just started work and needed to get his salary in order. Having 6 months without pay is unthinkable and unbearable. He was with Henry Kendari, a matured, responsible and respected person who he looked upon as a trusted leader. Henry Kendari and others were returning from Kainantu to Hengannofi, he would have a reasonable expectation that a trusted and respected leader of Henry Kendari's standing would do the right thing in reporting the matter to the authorities. Unfortunately, that did not happen and he is now a victim to circumstances.

11. In all the circumstances I consider that a sentence of 6 months is appropriate in this case. I note that he has been in custody awaiting trial for 8 months 1 day. I sentence the accused to the rising of the court.

Sentenced accordingly.

________________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused