N8096

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1037 OF 2017

THE STATE

-v-

NOTOK MONGIN

Tabubil: Koeget, J
2018:  09th, 11th, 14, 15th, 16th May.

CRIMINAL LAW-  Indictable offence – unlawful killing pursuant to section 302 of the Code – conviction  after a trial – facts and circumstance are serious enough to warrant and imposition of a sentence outside the range in the case of Manu Kovi –v- The State (2005) SC 789.

FACT

On 27th March 2017,  between 3 o’clock and 4 o’clock in the afternoon, the accused and wife Glesuk Albert were in a bush hut belonging to Baki Bokokin located between Finalbin and Bultem villages near Tabubil in the Western Province.  

The accused told Glesuk Albert to go to the bush to gather fern leaves to cook in the afternoon so she went followed by the accused.  The accused met Glesuk and as he was frustrated because it took her long time to gather fern leaves and had not return to the bush hut, an argument eventuated between them.   So the accused picked up a stick and hit Glesuk Albert on the hips and forehead.

The body of Glesuk Albert was found by relatives on 31st March 2017, six days after her disappearance along the Alice river at Dome village near Bige, Dredging station in the Western Province.

The State alleged that the motive, for the assault was due to the deceased’s extra marital affairs with other men in the village.

16th May, 2018	

1.	KOEGET J:  INTRODUCTION: The accused is charged with one count of Unlawful Killing (Manslaughter) pursuant to section 302 of the Criminal Code Act chapter 262. 

EVIDENCE FOR THE STATE

2.	The witness Tanas Patrick is originally from Busumil village, Telefomin in the Sandaun Province but now a resident of Bultem village, Tabubil in the Western Province.  He is married and reside with his family at Bultem village.

3.	He had known the accused and the deceased as they too live at Bultem village with him.  The accused and the deceased are also from Busumil village, Telefomin in the Sandaun Province.  Both are related to him.

4.	On 22nd March, 2017 at midday he was with his family members in the house at Bultem village when the accused and the deceased argued.   The accused used a PVA pipe to hit the deceased and the pipe broken in half and so he told the accused not to hit her with the pipe “You might face problem”.  He left and went to the river.

5.	When he return to his house, the accused and the deceased were still in his house.  At night the accused and deceased left his house and went somewhere but six days later the accused return alone and said “my wife went to the water” then he left for Busumil village, Telefomin in the Sandaun Province.

6.	He told the relatives to search for the body of the deceased in the river because she jumped into the water.  The body of the deceased was found at Dome village near Bige, on the bank of Alice river, an estimated distance of 200 kilometres from Bultem village.  The body was retrieved from the river and taken to Bultem village by relatives for burial.

7.	The witness Roselyne Komia is from Bultem village and is married to a man from Simbu Province.  She lives with him at Bultem village including their children.  She knows the accused and the deceased as she is related to both of them.  They too lived at Bultem village.

8.	On the morning of 27th March 2017, she went to weed grass at her sister’s rice paddy near the village.  She went with other village people at about 7 o’clock in the morning and remain there till midday when she took a walk with two young girls to Teri river to drink water.  She saw the accused on the other side of Teri river walking and dipping hands into the water.  She called the accused but he did not response.  She walk to Kami river and drank water and return to the rice paddy with the two girls.  The Kam river flows into Teri river and the later flows into the Ok Tedi river.

9.	The following day she met up with the accused at Bultem village and ask him:  “Yesterday I saw you at the river, were you looking for something?”  He replied:  “I do not know, I was not at the river.”

10.	She estimated the width of the Teri river not wide and the estimated distance between herself and the accused walking on the other side of Teri river approximately several meters.  The Kam river flows into Teri river and the latter flow into the Ok Tedi river.   The Ok Tedi flow downstream to Ningrum and joins the Alice river.   The Alice river flows into the Fly river at Obo.

11.	The Teri river was flooded and the water was flowing fast into the Ok Tedi river so she could not get to the other side of the river to meet up with the accused.

12.	The Kam and Teri rivers flow pass Bultem village  and into the Ok Tedi river.  The body of the deceased was found along the Alice river at Dome village near Bige dredging station and retrieved from the river by the relatives and taken to Bultem for burial.  

13.	The witness Baki Bokokin is from Kabarobip village but now residing at Finalbin village, Tabubil in the Western Province.  He knows that the accused and the deceased reside at Bultem village with their uncle Patrick Tanas.  On the afternoon of 26th March 2017 he went to his garden hut.  He smelt fire and smoke so went into the hut and saw belongings of people.  He noticed that the bags belong to the accused and wife.

14.	He concluded that the accused and wife left their belongings inside his hut so he lay down and slept.  His two dogs were barking so he woke up and went outside and saw the accused and Glesuk Albert walk to the hut.  They cooked food and ate.   He went hunting with his dogs into the bush and return to the hut in the morning and slept.

15.	He shut his eyes but still awake when the accused told his wife to go to the bush to gather fern leaves for cooking.  The accused followed her sometime later.

16.	He woke up and was surprise to see the accused standing at the door to the hut and his face changed, stirred at him and smiled.  The accused told him that his wife was frighted and she jumped into the water.  It was already dark and raining so they stayed and slept in the hut till the next day when Notok left for Bultem village and he went with his dogs to Finalbin village.  He heard in the village that the deceased’s body was found along Alice river at Bige and brought to Bultem village.  He went to Bultem village and saw the deceased’s body before the burial.

EVIDENCE FOR DEFENCE

Notok Mongin (sworn)

17.	He is originally from Busumil village Telefomin, Sandaun Province.

18.	He married Glesuk Albert also from Busumil village, Telefomin in the Sandaun Province but lived with the deceased and relatives at Bultem village.

19.	On 25th March 2017, he was with the deceased at Bultem village and later in the day went to Baki Bokokin’s garden hut.  On 27th March, 2017 he sent the deceased to the bush to gather fern leaves and he waited in the garden hut for a long time so set off in search for her.  He located her at the river and approached her.  He asked the deceased what she was doing at the river and proceeded to assault her.

20.	He picked up a stick and hit her at the back twice and once on the heard.  Then told her to return with him to the garden hut.  He walked ahead several meters and when turned back, saw the deceased stood on the stone.  

21.	He was angry so walked back and as he approached her, she raised her two hands in the air and jumped into the fast flowing water.  He search for her but could not find the body as it did not surface.  So he return to the garden hut as it was getting dark and the sun had set over the horizon.

22.	He return to the bush hut and told Baki Bokokin to accompany him to alert the people so they could search for the body of the deceased but Baki said  it was dark and raining it was not safe for them to go.

23.	So both slept in the garden hut and next morning he went to Bultem village and told Patrick Tanas about the deceased jumping into the river.

24.	He return to the bush hut and on the afternoon of the same day, he was visited by Patrick Tanasa and wife and her mother.  They said the deceased’s relatives wanted to burn down his house and damage properties so he should go to Bultem village with them.  He followed them but out of fear of his own life he walked to Busumil village in Telefomin district of the Sandaun Province.

25.	He remain in the village till police from Telefomin took him and arrange for him to be flown to Kiunga and then to Tabubil.

Analysis of Evidence in the Trial

26.	The evidence of Patrick Tanas is that he is an uncle of the accused.  On 26th March 2017, the accused, picked up a PVA pipe and seriously hit Glesuk Albert and he told the accused not to assault her or there may be serious problem.  This evidence in my view shows that the accused is capable of seriously assaulting the wife whenever he is angry or upset with her.

27.	The evidence of Baki Bokokin is that on the 27th of March 2017, he was in his garden hut with the accused and deceased.  He had closed his eyes but still awake when the accused sent his wife to go and gather fern leaves so she left.  The accused followed the deceased sometime later and he did not see where the accused went.  But later in the afternoon the accused arrived at the bush hut.  When he opened his eyes, the accused stirred at him and smiled.  His body was wet so as his shorts.  This evidence shows that the accused was in the water prior to his arrival at the garden hut when sighted by Baki Bokokin.

28.	The accused told him that his wife jump into the water but did not tell him the location and the name of the river, creek or well where she jump into so that a search party could be alerted to locate her body.

29.	The evidence of Roselyne Komia is that on 27th April 2017 at midday, she went with three girls to Teri river to drink water after working in her sister’s rice paddy.

30.	She saw the accused with shorts with no shirt walking along the side of Teri river dipping hands into the water.  She called him and the accused did not respond but continued walking and he disappeared into the bush.

31.	This evidence is supported by the evidence of Baki Bokokin that when the accused return to the garden hut, he wore shorts and no shirt and his body and shorts were wet.
The accused was seen on the other side of Teri river.  In my view he was not searching for the body of the deceased, but pushing it to clear water so that it will float down to Ok Tedi river.

32.	The accused’s evidence that the deceased jumped into Groll river, is in view a fabrication because he heard Roselyne Komia state in court that she saw him in the water at Teri river walking and dipping hands into the water.  So he purposely named another river making it is difficult to find the exact location where he threw the deceased’s body into water.

Findings

(1)	That the accused hit the deceased on the back and head with a stick as he admitted in the trial.

(2)	The accused was seen in the Teri river dipping hands into the water when seen by Roselyne Komia without shirt but only shorts.  The witness Roselyne Komia spoke to the accused and ask what he was looking for in the water.

(3)	The deceased’s body was thrown into the water at Teri river and not Groll river.

(4)	When Bultem villagers knew that deceased died and became angry as they search the Kam, Teri and Ok Tedi rivers for the deceased’s body, the accused fled to his village in Telefomin out of fear of reprisal.  He remain in his village till police took him to Tabubil and eventually to Kiunga for interrogation into the disappearance and death of the deceased.

(5)	The accused is an untruthful witness so his evidence is disbelieved.

(6)	I accept evidence of the state witnesses that the accused assaulted the deceased threw her into the Teri river.  He caused the death of the deceased.

Verdict

33.	The accused is found guilty as charged.

ISSUE

34.	What is the appropriate sentence the court should impose upon the prisoner?

PERSONAL PARTICULARS

35.	The prisoner is married with three wives.  He has no formal education and has been a subsistent gardener until the date he committed the offence.

AGGRAVITING FACTORS

36.	He hit the deceased with a stick on the back twice and once on the head.  He threw the body of the deceased into the fast flowing Teri river and the body floated into the Ok Tedi river then into Alice river.  The body of deceased was found at Dome village near Bige dredging station approximately more than 200 kilometres down the Alice river.

MITIGATING FACTORS

37.	He is a first time offender.  He has been in custody for one year and five months awaiting disposal of the case.

SENTENCE

38.	The prisoner had unhappy marriage with the deceased at Bisumil village, Telefomin as he accused her of extra-marital affairs with other men in the village.  So both migrated to Bultem village where they lived with relatives.

39.	In Bultem village, the prisoner continued to accused deceased of being unfaithful to him and often assaults her in the village in view of the villagers.  The prisoner accused the deceased of being unfaithful so he hit her with the PVA pipe in the presence of his uncle Patrick Tanasa in Bultem village.

40.	The accused sent the deceased to the bush to collect fern leaves on 27th March, 2017 and when she did not return to the garden hut quickly, he became angry so set off to search for her.  When he found her in the bush, he took a stick and hit her twice at the back and once on the heard.  The body of the deceased was thrown into the Teri river as stated by the State witness and he went into the river to push the body to a clear part of the river so that it will float quickly to Ok Tedi river.  The body was found along Alice river at Dome village some 200 kilometres from Teri river near Bultem village.

41.	The relatives found the body six days after her disappearance and retrieved it from the river while the prisoner fled to his village.  He had no dignity and respect for the human life.  The body of the deceased was partly decomposed.

42.	In my view, severe sentence outside of the tariff in Manu Kovi –v- The State (2005) SC 789 is to be imposed to show him that court does not tolerate his conduct on what he did to the deceased resulting in the death.   So the sentence of the court is that the prisoner is sentenced to 20 years in hard labour.  The pre-trial custodial period of 1 year and 5months are deducted and he is to serve the balance of 18 years, 7 months at Ningrum Corrective Institution Services.

Accordingly ordered. 
________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer of Accused