N7893

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.  1086 OF 2018

THE STATE

V

TIMOTHY JOHN

Kiunga: Koeget, J
2019: 13th, 14th, 17th May

CRIMINAL LAW-   Indictable offence – Unlawful Killing pursuant to section 302 of the Criminal Code Act chapter 262 – guilty plea – accused sentenced on guilty plea – partner unfaithful and her conduct provoked accused to assault and inflict injuries on her body – “de facto provocation” available so accused sentenced within the sentencing range set out in The State –v- Manu Kovi.

FACT

On the 30th of March 2018 between 12 midnight and 2 o’clock in the morning, the accused and his wife were in their bedroom in the family house. The accused persistently assaulted the deceased resulting in her sustaining multiple injuries to her head, face and legs.  The deceased fell unconscious in the bedroom and the accused sought assistance from immediate family members to revive her but such assistance were futile.   So the deceased was rushed to the Tabubil hospital where she was placed on life support machine during the day.  She suffered head injuries due to a direct blunt force trauma as a result of the physical assault. She died due to the head injury sustained. 

Counsel:

Mr. D. Mark, for the State
Mr. E. Sasingan, for the Accused
Cases Cited:   

The State –v- Dai Wadbag (N6410)
The State –v- Samuel Kakuru and Dimson Misher (N6593)

17th May, 2019

1.	KOEGET J: INTRODUCTION: The accused is charged with one count of unlawful Killing pursuant to section 302 of the Criminal Code Act Chapter 262.  

ISSUE

2.	The accused pleaded guilty to the charge and so he was convicted accordingly.  The issue for the court to determine is what is the appropriate sentence the court should impose upon him.

LAW

3.	“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.”	

PERSONAL PARTICULARS

4.	The prisoner is 39 years old and is a community leader in Wangbin village, Tabubil, Western Province.  He is a chairman of Wangbin Service Station, a joint venture with Ela Motors.  He is a leader with the Community Mine Continuation Agreement (“CMCA”) in the North Fly representing villagers affected by the OK Tedi Mine pollution.

AGGRAVATING FACTORS

5.	Although no weapon was used in the commission of the offence, this was a vicious attack resulting in the deceased sustaining multiple injuries to the head, face, back and legs as shown on photographs tendered as part of the committal depositions.

6.	A life is lost and no one can replace it, not even compensatory measures in cash or kind or expression of remorse can resurrect a life.

MITIGATING FACTORS

7.	The prisoner admitted commission of the offence to the police and in court he pleaded guilty so valuable time of the court is saved.  He paid compensation in cash and kind to the deceased family and it was accepted.

8.	In allocatus the prisoner stated he was in Port Moresby for two weeks and in his absence the deceased left the family home and was seen drinking beer in company of other men.  She returned to the house when he returned to Tabubil.  He forgave her for the love of their young children and to keep their marriage intact.  

9.	On the date of the offence, the prisoner and the deceased drank beer with prisoners’ cousin brothers and at midnight, when all beer finished, both retired to their bedroom in the house and slept.  At about 2 o’clock in the morning, when he woke up, he did not see the deceased in the room because she went out of the house.  So he went out to the veranda and called out for her but no response.  She returned sometime later and both argued and fought so the deceased’s actions and conduct contributed to the anger and frustration of the prisoner resulting in her assault and consequential death.

10.	I accepted all that the prisoner stated in allocutus, but a life is lost.  The court has to consider all other factors involved so that fair and just sentence is imposed.

SENTENCE

11.	In sentences for Unlawful Killing (Manslaughter), court must have careful regard to the circumstances of the death and the way it was caused.  In this jurisdiction, the Supreme Court in the case of Rex Lialu –v- The State [1990] PNGLR 487 cited, adopted and applied the principle from the English case of R-v- Philips (1985) 7Cr App R(s) 325 Lord Justice Watkin in delivering judgement of the court said at page 237:

“The offence of Manslaughter is unhappily, one which is committed quite frequently in large variety of circumstances.  The court has to pay very careful regard to the circumstances of the death, and especially to the way the death was actually caused in coming to conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.......”

12.	I agree with the principle cited above and it is applicable to this case.  In this jurisdiction the Supreme Court has provided guide lines in homicide cases for Wilful Murder, Murder and Manslaughter in the case of Manu Kovi –v- The State (PGSC 34, SC789 (31st May, 2005).  This case falls within category 1 of Manu Kovi’s case and the sentence range from 8 – 12 years.

13.	The prisoner and deceased were sleeping in their bedroom when the deceased woke up and went outside following her self-fish desire of the flesh.  I pose this question. “What man can accept such rude and self-fish behaviour or conduct of his wife and easily forgive her for her misdeeds?”

14.	In my view, most men will not condone such actions of their wives and most will resort to violence as in this case.  Such are natural reactions of human beings.

15.	The prisoner naturally became very angry and assaulted the victim when she returned to the bedroom sometime later.

16.	In view of the prisoner’s statement on allocatus, particularly, the “de facto provocation” available in this case, I am of the view that the sentence should commence at the bottom range of the guide line.  So the prisoner is sentenced to 8 years in hard labour.

ORDER

(1)	The sentence is to be served at Ningerum Corrective Institute Services.
(2)	The prisoner’s bail money is refunded to him.

Accordingly ordered.

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