State v Valken [2020] PGNC 170; N8391 (5 March 2020)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW - Indictable offence – Murder pursuant to section 300 (1) of the Criminal Code Act – Conviction after a trial – Exercise of Court’s discretionary powers on imposition of sentence outside the guide lines set by the Supreme Court in Manu Kovi –v- The State.

On the morning of 1^st January 2019, at about seven o’clock, the deceased and friends were painting people with black paint randomly as it was a New Year. They chased a man to the location where the accused and his brothers were drinking alcohol.

The deceased ran away but his friend was apprehended by the accused and his brothers. The accused and his brothers then chased the deceased and caught him. It is alleged that the deceased stabbed the accused’s brother Darren on the hand with a screw driver and freed himself. The accused removed the screw driver from the deceased and used the same screw driver to stab him on the top of the head and in the neck.

The deceased collapsed and was shaking uncontrollably. He was taken to the Port Moresby General Hospital and admitted to the Intensive Care Ward and he died on 4^th of January, 2019.

The State further allege that the accused stabbed the deceased, Allan Lester and caused his death, contravening Section 300 (1) (a) of the Criminal Code Act chapter 262.

Manu Kovi v the State (2005) SC789
The State –v- Benjamin Emma and Paul Tom (2020) N8098.

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Murder pursuant to Section 300(1)(a) of the Criminal Code Act chapter 262.

2. The accused pleaded not guilty so a trial was conducted to determine the allegation. At the commencement of the trial, the State with counsel tendered into court the following documents as exhibits:-

3. Between 2018 – 2019, she resided at ATS settlement located on the northern side of the Jackson’s International Airport. She resided in the family house with her parents and other siblings.

4. On the morning of 1^st of January 2019, she was standing outside the family house but within the premises. She stood at the front of the family house when she observed the deceased standing near the toilet in the premises. She saw Darren approach the deceased and questioned him as she was about 15 – 20 meters away from them. She saw Darren throw a punch at the deceased and he ducked down to avoid the punch but when he raised his head up, Darren threw a second punch and it struck him on the head and he fell to the ground. The deceased stood up and was telling Darren “I am innocent, I am innocent” or “In no mi, In no mi”.

5. At that instance she saw the accused run to the rear of the deceased saying “mipela, mangi Momase. Mipela ino save pilai, pilai long ol man”. (“We are children from Momase. We do not play around with people”). The accused did not stop nor talk to the deceased. He proceeded to the deceased and stabbed him with a screw driver on the top of the head while the former was still fighting with Darren. The accused pulled the screw driver out and hit his chest with folded fist and said “Mipela Mangi Momase. Mipela ol lain long kilim ol man”. (“We are children from Momase, we kill people”). The accused repeated the same words three times and walked out of her premises. The people gathered at the crime scene told Darren to take the deceased to the hospital.

6. Darren laid next to the deceased and wiped away the blood from his nose, mouth and head. The deceased’s relatives arrived and were angry but did nothing. They said, “whoever assaulted the deceased must take him to the hospital”. A relative took the deceased to the hospital and he was admitted and three days later she heard the deceased had died. She knows Darren as he resides at ATS settlement and she saw him on many occasions.

7. She identified the accused seated in the dock as the person that used the screw driver to stab the deceased on the head. She stated that the accused went to the deceased then at close range stab the deceased with the screw driver. The accused stabbed the deceased on the head with a down thrust with force then removed it and said “Mipela Mangi Momase” (“We are children from Momase”).

8. When the accused arrived and stood very close to the deceased, Darren was still there. The deceased stood facing Darren when the accused stabbed him on the top of the head with a screw driver from the rear. The deceased did not harm anyone before he was stabbed on the head with a screw driver by the accused. The deceased held no weapon in his hands when he entered the witnesses’ premises.

9. He is from West New Britain Province but resides at Air Niugini Village at Korobosea in the National Capital District.

10. He resided with a cousin at Air Niugini Village but on 31^st December 2018, went to ATS settlement to be with cousins to celebrate the New Year (1^st January, 2019).

11. On the night of 31^st December, 2018 he was with his cousin brothers drinking alcohol at ATS settlement till the morning of 1^st of January 2019 at about 7 o’clock when his cousin brother went outside while he remained inside playing music on the boom box. He heard noise of people fighting so he came outside to find out. He discovered people were running there so he walked closer to see the people fighting.

12. His cousin brother was stabbed with a screw driver so he went closer to stop the fight but the person with the screw driver had injured his cousin. He swung the same screw driver at him which he evaded. The same man swung his hand the second time and he caught his hand, twisted it and removed the screw driver. He swung his hand with the screw driver to scare the assailant but the assailant lunged at him and his head connected the sharp end of the screw driver resulting in the deceased sustaining the injury (on the head) from which he died at the hospital. This was an accident. He did not know the deceased and so had no intention to cause his death.

13. However, in the record of interview between himself and the police officers, in questions and answers to:

A	:	Keith and Darren were chasing these boys who I came and fight in Darren’s house.
Q	:	When you were at the fighting place then what happen?
A	:	When I arrive I saw the deceased was holding a screw driver and stabbed Keith on his hand and blood came out and at the same time the deceased turned and wanted to stab me so I grabbed his hand and twisted it and pull the screw driver from his hand and stab him on his head”.

14. Since the accused gave differing accounts, the following questions were asked by the trial judge to ascertain which account he said was correct:

“Q	:	The account given to the police investigator was two weeks after the commission of the offence when events were still fresh in your mind?
A	:	Yes
Q.	:	The account you gave in the trial is over one year from the date of the commission of the offence?
A	:	Yes.
Q	:	You gave some thought of what evidence to give in the trial?

A	:	Yes.
Q	:	So this is the account you give in the trial?
A	:	Yes.
Q	:	Which one of the accounts is true?
A	:	The evidence given on oath in the trial.
Q	:	Were you lying to the police when you gave the account in the record of interview?
A	:	Yes”.

15. The only State witnesses’ evidence is that she went outside of the family home in the morning and observed Darren question the deceased. She stood 15-20 meters away and it was very clear and her vision was not obstructed or obscured by any objects, trees, or flowers. She saw Darren throw a punch at the deceased and it missed when he ducked down but as he slowly raised his head up, Darren delivered a second punch that struck him on the head and he fell down to the ground. The deceased stood up and was facing Darren when the accused arrived at the location and stabbed him on the top of his head with a screw driver.

16. The witness was adamant that the deceased did not hold a screw driver. The accused held the screw driver in his left hand and he used it to stab the deceased on the head. The deceased did not provoke the prisoner nor uttered any insulting words to trigger the assault upon himself.

17. The State witnesses’ evidence was not discredited in Cross-Examination. The evidence is intact and is one that is credible and can be believed.

18. The accused on the other hand gave conflicting evidence, in the record of interview with the police and in the trial. For instance in the record of interview he raised the defences of self-defence; and Aiding in Defence (s271 Criminal Code). However, in the trial the accused abandoned these defences and raised the defence of Accident. These demonstrates that the accused can change his evidence at will whatever defences suit him or whenever circumstances suit him. In the trial, he admitted lying to the police during the conduct of the record of interview.

19. In my view, the accused cannot be trusted as he lies and changes his evidence whenever the circumstance suits him. So I reject the entire evidence of the accused in the trial.

20. I accept the evidence of the only State witness supported by the doctor’s evidence (affidavit) and the post-mortem report. I conclude that the State has established all the elements of the offence and has proved its case beyond reasonable doubt against the accused. So the accused is found guilty as charged.

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

22. The prisoner is 22 years of age and is a bachelor. He is educated up to grade 6 and was residing with a relative at Air Niugini Village, Korobosea in the National Capital District.

23. The prisoner was drunk when he committed the offence. A screw driver was used to inflict the injury on the deceased from which he later died. Such offence is prevalent in the country particularly at parties or even at domestic settings when offenders are drunk.

24. The prisoner is a first-time youthful offender. He surrendered to the police when relatives of the deceased threaten to take revenge on the extended families of the prisoner at ATS compound and Air Niugini Village at Korobosea.

25. He has been in custody awaiting disposal of the case for one year and four months.

26. The offence for which the prisoner is convicted of carries a maximum sentence of life imprisonment. The deceased was happily celebrating the New Year by painting friends, relatives and other members of his community with mud, paint, flowers etc as such is a tradition in most villages in the country.

27. The prisoner’s cousin brother Darren chased the deceased and fought with him. There is no evidence of why Darren chased and fought with the deceased.

28. Darren has not been charged by the police under section 7 or 8 of the Criminal Code Act chapter 262 for aiding and abetting the prisoner in the commission of the offence as he was still fighting with the deceased when attacked from the rear by the prisoner with a screw driver. In my view he ought to be charged for the death of the deceased.

29. The deceased died without knowing the reason why he was attacked by the prisoner nor had knowledge and identity of the offender.

30. A life is lost and cannot be resurrected by mere apology. No one can measure the heart aches and pain the parents and other siblings experience at the loss of their loved one. This was a vicious attack on an unarmed person, initially by Darren and then later by the prisoner. When the prisoner ran out of the house with a screw driver, he said: “Mipela Mangi Momase Mipela ino save pilai pilai long ol Man”. The prisoner stabbed the deceased on the head with a screw driver. When he pulled out the screw driver, he hit his chest with folded fist and said: “Mipela Mangi Momase. Mipela lain long Kilim ol Man.” The prisoner boasted about stabbing the deceased with the screw driver as if he had won a price in a football game. Only lunatics behave and boast like that.

31. The Supreme Court in the case of Manu Kovi –v- The State (2005) SC789 sets out the tariff of sentences for such offence and according to the tariff in that case, the case fall into category 2, a sentence within the range of 14 – 16 years.

32. In my view, the circumstances warrant an imposition of sentence outside of the suggested tariff in that case. In February 2020 in Daru, I imposed sentences on two prisoners for committing similar offence in: The State –v- Benjamin Emma and Paul Tom (2020) N8098.

33. The prisoner had absolutely no reasons to attack the deceased and used screw driver to stab him on the head. This was a vicious attack on an unarmed person so the sentence imposed should demonstrate to the other would-be offenders that such actions are not condoned by courts in this jurisdiction. The sentence of court is that the prisoner is sentenced to be imprisoned for a period of 40 years in hard labour. The pre-trial custodial sentence of one year and four months are ordered to be deducted. The balance of 38 years and 8 months are to be served at Bomana Goal.

Accordingly Ordered.
________________________________________________________________
Public Prosecutor: Lawyer for the State

National Court of Papua New Guinea

State v Valken [2020] PGNC 170; N8391 (5 March 2020)