N6593

	PAPUA NEW GUINEA         
       [IN THE NATIONAL COURT OF JUSTICE]

	CR No. 1588 of 2015	

THE STATE

V

SAMUEL KAKURU AND DIMSON MISHER

				Daru :  Koeget, AJ
				2016	:  16th & 25th February

CRIMINAL LAW:  Indictable offence – Unlawful Killing – section 302 of Criminal Code Act – accuseds pleaded guilty – maximum sentence – discretionary sentencing powers of court under section 19 of Criminal Code Act. 

Held:

(1) The Court must consider the circumstances in which the offenders committed the offence resulting in the death of the deceased.

(2)Nobody can replace a lost life not even compensatory measure in cash or kind or expression of remorse can resurrect a life.  The sentencing guide lines in the case of Manu Kovi –v- The State (2005) PGS 34, SC 789 (31st May 2005) applied.
	
Cases Cited:
Rex Lialu –v- The State [1990] PNGLR 487
Manu Kovi –v- The State [2005] PGS 34, SC 789 (31st May, 2005)

Counsel:
D. Mark, for the State
B. Popeu, for the Accused

25th February, 2016
	
INTRODUCTION

1.    KOEGET AJ:  The accuseds pleaded guilty to one count of unlawful killing of Azra Dangu at Pukaduka village, Suki in the Western Province.  The charge is brought pursuant to Section 302 of the Criminal Code Act, chapter 262.

FACTS

2.   On 28th February, 2015 the accuseds went to the deceased’s village and confronted him and others at seven o’clock in the night. It is alleged that Dimson Misher threw the torch at the deceased and it struck him on the forehead.   The deceased staggered backward as a result.

3.   Then co-accused Samuel Kakuru hit the deceased on the head with iron rod measuring 1 meter long. The deceased fell to the ground and laid unconscious until taken by relatives in a dinghy to Obo Rural Health Centre where he died on 7th of March, 2015.  The State further alleged that the accuseds had no lawful excuse to assault and cause the death of the deceased. 

ARRAIGNMENT

4.   Both accuseds pleaded guilty to the charge after the arraignment.

ISSUE:
5.   The only issue for the court to determine is what is the appropriate sentence to be imposed upon the prisoners.

EVIDENCE

6.   The State tendered the following documents by consent.  

•	Statement of Damiu Azira dated 29th March, 2015

•	Statement of Masoi Dangu dated 12th May, 2015.

•	Statement of Ivi Kina, a policeman dated 28th March, 2015.

•	Statement of Itina Gugri dated 30th March, 2015.

•	Statement policeman Thomas Tamei, dated 11th June, 2015.

•	Statement of policeman Dickson Aidali, dated 11th June, 2015.

•	Statement of Richard Ricker dated, 04th May, 2015.

•	Record of Interviews:
(a)	Samuel Kakuru dated 24th April, 2015 and skitch plan of the Crime scene.

(b)	Dimson Misher dated 2nd June, 2015.

•	Medical Report( by Rural Health Workers)

LAW

7.    Section 302.  Manslaughter.
“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.  

Penalty:  Subject to section 19, imprisonment for life.”

VERDICT

8.   I perused the committal depositions tendered by State and I am satisfied that the elements of the offence are establish by the documentary evidence.  The accuseds acted in concert so both are convicted as charged.  

MITIGATING FACTORS

9.    The prisoners admitted in court that what they did to the deceased was wrong and apologise to the deceased’s family and the community in Suki in Morehead, South Fly District of the Western Province.

 Both apologise to the people at Daru for the sins they committed and ask for God’s forgiveness. The prisoners are in their early 20’s and were substance gardeners at the time they committed the offence.  They have no prior convictions so they are first time offenders.

The prisoner Samuel Kakuru is a bachelor but Dimson Misher is married with two young children aged between 9 months and 3 years respectively. The children are with their mother in the village at Suki.

Both prisoners have limited formal education and have asked the court to be lenient when imposing sentences.  They are first time offenders and their pre-trial custodial period is 8 months 18 days each up to 16th February, 2016. 

The maximum sentence for such offence is an imprisonment for life years.  So the offence is regarded as very serious.   However, this is not the worst type of unlawful killing. 

 Both Counsels submitted that court consider the sentencing guide lines in the case of Manu Kovi  -v -  The State SC 34 (SC789). They further submitted that the prisoners’ case fall within category 2 of the suggested guide lines.  The suggested sentence for such offence range between 13 - 16 years. 

10.   However, the court still has discretionary sentencing powers under section 19 of the Criminal Code Act chapter 262.

11.    Section 19 (1) Construction of provisions of Code as to punishments.

(1)	In the construction of this Code, it is to be taken that, except where it is otherwise expressly provided – 
(aa) a person liable to death maybe sentence to imprisonment for life or for any shorter term; ....”

12.   The prisoners planned to commit the offence and executed it two days later when they went to the deceased’s village and assaulted him.  An iron rod was used to hit the deceased on the head causing him to fall to the ground and he remained in coma till pronounce death at Obo Rural Health Centre on 7th March, 2015.

13.   The killing of the deceased is not on spare of a moment. They had two days to device their plan and executed it and so this makes their case more serious compared to other cases of unlawful killing.  So a severe punishment is call for in this case to demonstrate to the prisoners and the public at large that courts treat this type of offences very serious and severe sentences will be imposed on would be offenders.

SENTENCE

14.   In the exercise of the court’s sentencing discretionary powers under section 19 of the Criminal Code Act the prisoners are sentenced to be imprisoned for period of 16 years each in Hard Labour.  The pre- trial custodial periods of 8 months and 18 days are deducted from each of the sentences. They are to serve the balances of 15 years, 4 months and 3 days each at the Daru Corrective Institution Services.  

Public Prosecutor:   Lawyer for the State		
Public Solicitor :  Lawyer for the Accused