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State v Biyama [2016] PGNC 400; N6723 (6 November 2016)

N6723

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1801 of 2016

THE STATE

V

RUSSELL BIYAMA

Daru: Koeget, AJ
2016: 6^th November

CRIMINAL LAW - Indictable offence – Unlawful killing under section 302 of the Criminal Code Act – Accused pleaded guilty to the charge – Exercise of Court’s discretionary sentencing powers under Section 19 of the Criminal Code Act.

Held:

In Papua New Guinea many people and organisations advocate “violence against women is an offence” so that when women are assaulted Court must impose severe sentences on offenders. But women must respect their marital relationship with their husbands. It does not give them the freedom to engage in extra marital relationship with other men. Accused killed the deceased on suspicion of having extra-marital affairs contravening s302 of the Criminal Code Act. The prisoner was sentenced to 13 years in hard labour less time spent in pre-trial custody.

Cases Cited

Rex Lialu –v- The State [1990] PNGLR 487
Manu Kovi –v- The State (2005) SC 789

Counsel:
D. Mark, for the State
W. Dickson, for the Accused
6^th November, 2016

1. KOEGET AJ: INTRODUCTION: The accused Russell Biyama of Baramura village, South Fly District of Western Province is charged that on 6^th September 2016 at Samari Corner in Daru, unlawfully killed Gretel Maipu, an adult national. The charge is brought pursuant to section 302 of Criminal Code Act.

FACTS:
2. The accused Russell Biyama was married to the deceased Gretel Maipu and she was his second wife. It is alleged that on 6^th of September 2016, between the hours of 4:00 o’clock and 5:00 o’clock in the morning, the accused entered the premises of the deceased’s family house located at Samari Corner in Daru town. He walked into the house and in particular, the room the deceased shared with him. He was intoxicated after consuming alcohol and when he entered the room he argued with the deceased resulting in him pulling up a pocket knife and stabbing the victim on the right hand side of her body.

3. The knife penetrated the right hand side of the deceased’s chest through to the right lung and liver. The deceased was rushed to the Daru General Hospital but died later due to loss of blood and shock.

ARRAIGNMENT:

4. The accused pleaded guilty to the charge so he was convicted accordingly.

EVIDENCE:

5. The State Prosecutor tendered into court with consent the District Court Committal depositions. I perused the committal depositions and noted accused’s answers to the questions in the record of interview. There are admissions in the record of interview between the accused and the police investigating officer dated 14^th September, 2016. So the accused’s guilty plea is confirmed accordingly.

ISSUE:

6. The issue for the Court to determine is what is the appropriate sentence to impose upon the prisoner.

Personal Particulars:

7. The prisoner is 32 years of age and he is unemployed. He is married with 2 wives. The deceased was the second wife. The first wife is still alive and her whereabouts has not been disclosed to the Court.

8. His parents are still alive but separated. The father has remarried and mother resides at Samari Corner in Daru town.

9. He cares for four children of his elder sister and one of his own and all of them are of tender ages and reside at Samari Corner in Daru town. He is a member of the Daru “Sting-Ray” Rugby Union Club.

10. The prisoner completed Grade 12 at Daru Secondary School in 2003 and returned home to live with his mother. He resides at Tureture Corner in Daru but often spent time with deceased wife at her house in Samari Corner also in Daru.

AGGRAVATING FACTORS:

11. The prisoner was intoxicated when he returned to the deceased in the early hours of 6^th September, 2016.

12. The knife he used to stab the victim on her right hand side of the chest was left on top of the lunch box by the deceased. The wound was deep as it penetrated the right hand side of lung and liver. The wound developed complications that led to the death of the deceased.

MITIGATING FACTORS:

13. A hand written note by the prisoner tendered to the Committal Court Magistrate that formed part of the committal depositions states:

“On 5^th September, 2015 between 9:00 pm and 10:00 pm the deceased wife was standing with a man on the side of the road.”

14. The accused saw them and called her to come to him. She came hurriedly to him and argument eventuated between them resulting in the accused smashing the green chair in the house.

15. The prisoner saw the deceased wife with a man in the dark standing on the road side. He concluded that she was unfaithful to him. In my view, the prisoner cannot be blamed entirely for what has happened resulting in the death of the deceased.

LAW:

Section 302 of the Criminal Code Act.

“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.”

16. The Supreme Court in Papua New Guinea in the case of Rex Lialu –v- The State [1990] PNGLR 487 stated that in sentences for manslaughter, court must have careful regard to the circumstances of the death and the way in which death was caused.

Section 19 of the Criminal Code Act states:

“Construction of Provisions of Code as to punishments.

(1) In the construction of this code, it is to be taken that, except when it is otherwise, expressly provided –

• (a) A person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term, ......”
  

17. In this case, the prisoner is not to be entirely blamed for the argument between himself and the deceased wife.

18. The deceased was seen standing on the side of the road at night between 9:00 o’clock and 10:00 o’clock in the dark with a male companion. The prisoner signalled and she went to him. He questioned her resulting in the prisoner damaging the green plastic chair belonging to the deceased’s family.

19. The sight of the deceased wife in company of a male person standing along the road at night angered him so he left and went out with friends. The prisoner felt cheated by the deceased wife so he went and got drunk to drown his sorrows. He returned home drunk and argued with the deceased.

20. Many organisations, NGOs advocate in Papua New Guinea - “Violence Against Women” is an offence. So that Courts impose tough sentences on offenders. But in my view, women must respect their marital relationship with their husbands. It does not give women the freedom to engage in extra marital affairs with other male persons.

21. In Manu Kovi –v- the State [2005] SC 789 the suggested tariff of sentences for such offence ranges between 12 – 16 years imprisonment term.

22. In the exercise of the Court’s discretionary powers under Section 19 of the Criminal Code Act and in view of the tariff of sentences ranged in Manu Kovi’s case, the prisoner is sentenced to be imprisonment for a term within category 2 of the tariff.

SENTENCE:

23. The prisoner is sentence to 13 years in hard labour. The pre-trial custodial period of 3 months is deducted. The balance of 12 years 9 months are to be served at Daru Corrective Institute Services.

ORDER:

24. The prisoner is to serve the balance of the sentence of 12 years 9 months at Daru Corrective Institute Services.

______________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer of Accused