State v Bijehume [1990] PGNC 71; N945 (7 December 1990)

Unreported National Court Decisions

N945

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR646/88
THE STATE
V
POHONE BIJEHUME

Goroka

Brunton J
7 December 1990

CRIMINAL LAW - Criminal Code s300 - murder - sentencing - killing of brother with bush-knife - land dispute - loss of control.

Cases cited:

The State -v- Eddie Kava Laura [1989] N693.

Sentence:

Five years six months in hard labour.

JUDGEMENT ON SENTENCE

BRUNTON J:

THE INDICTMENT

The prisoner pleaded guilty to an indictment charging that he murdered his younger brother contrary to s300 of the Criminal Code.

THE FACTS

The prisoner is from Taru Village near Henganofi. His father and mother are dead. He inherited a coffee-garden. His brother Lotu resented not being able to share in the proceeds of the coffee-garden, and there was a long-standing dispute between the two brothers. On the 9th of June 1989 the prisoner and his wife went to the garden to pick coffee. Lotu came and began an argument. It is not clear exactly what happened, but it is certain that the prisoner lost his control and struck Lotu across his neck with a bush-knife.

The post-mortem report showed a large superficial laceration on the back of the left hand. A similar laceration was present over the right hand. There was a laceration on the right deltoid (on the right shoulder). These wounds were not fatal. The fatal wound was a deep v shaped clean cut over the right side of the neck just below the angle of the mandible (jaw bone). This wound severed all the major blood vessels on the right side of the neck, and the cervical spine, the spinal cord and all muscles on the right side of the neck. The wound ended in a point after going right through the cervical spine and the spinal cord. It can be inferred that the deceased was almost decapitated, and that the blow to inflict such a wound would have been very hard.

THE PRISONER

The estimated age of the prisoner is about forty years. He is married with two children, one female aged six years, and one male child aged four years. His father and mother are dead, and now with the death of his only brother he is on his own. He has no formal education and earns his living as a village subsistance farmer, gaining a little cash from his coffee-gardens. He has never been formally employed. He has shown remorse and contrition before the Court and I accept that he now mourns the loss of his brother deeply. He appears to be a quietly spoken genuine person.

THE SENTENCE

Although it does not bind, the case The State -v- Eddie Kava Laura (1989) N693 has been used as a guide for sentencing in murder cases. In that case the Chief Justice said:

“I consider that a murder case with no special aggravating factors where the Accused pleads guilty - should attract a sentence of 6 years”.

His Honour established that there needed to be a relativity between sentences for murder and the lesser offence of manslaughter. These principles are generally followed by the Judges in their sentencing.

In this case the prisoner has pleaded guilty and there do not appear to be any aggravating circumstances. The death of Lotu was one of the tragedies that not infrequently arise in families in the Highlands, when there are unresolved land-disputes. Here the underlying cause of the death was the lack of clarity about the bequest of a coffee-garden.

The deceased thought he had some rights to the garden. On the fatal day he went to the garden and pressed his claim. He went away, and then returned. He pressed the claim again - but this time, unfortunately for him, he pressed too far. The prisoner snapped and killed him with a bush knife. In way it can be said that the deceased brought about his own demise. Bush-knives are lethal, but ever-present in a gardening situation as an essential agricultural tool. In a way, to push an argument over land, on the land itself, when bush-knives, axes, and other tools are to hand is unwise in Henganofi. But it does not justify murder - merely explains why it happens.

The killing of Lotu Bijehume was not premeditated. It was, momentarily, a lapse in self-control. The prisoner regrets his acts, and will regret them for the rest of his life. Nevertheless a life has been taken, and the community must register its objection to that. This is a killing that has taken place in the customary sector although the subject of the dispute, a coffee-garden, is part of the modern economy, and is a revenue generating asset. The laws relating to the disposition of such property are poorly defined and it is not surprising, given the volatile temperament of the people, that killings like this do occur from time to time. Again, that is not to justify killing - but to explain it sociologically.

These factors, in my mind place this offence in the lower category of murder for sentencing purposes. This was a tragic killing within a family. There has to be a punishment, but it does not have to be over-bearing.

I sentence the prisoner to five and a half years in prison with hard labour.

He has spent eighteen months on remand.

He is to serve another four years imprisonment.

Lawyer for the State: The Public Prosecutor

Lawyer for the Prisoner: The Public Solicitor