State v Iyana [1996] PGNC 12; N1451 (7 June 1996)

Unreported National Court Decisions

N1451

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1462 OF 1995
THE STATE
v
KINIBO IYANA

Waigani

Passingan AJ
3 June 1996
7 June 1996

CRIMINAL LAW - Murder - Death caused by means of an act - Nature - Likely to endanger human life - Mixture alleged to be traditional cure - Caused instant death - Mixture highly harmful - The Criminal Code Section 300 (1) (b) (ii).

Cases Cited:

The following case was cited in the judgment:

The State v Laura (No 2) [1988-89] PNGLR 98

Counsel:

D Mark for the State

L Sasaruo for the accused

JUDGMENT ON SENTENCE

7 June 1996

PASSINGAN AJ: The prisoner aged 20 pleaded guilty to a charge of murder pursuant to Section 300 (1) (b) (ii) of the Criminal Code.

Section 300 (1) (b) (ii) r

“(1) ct tosucc edingeding proviprovisions of this Code, a p, a person who kills another person under any of the following circumstances is guilty of murder:

(a) &ـ ...

.

(b

(b) ټ if deat death was caused by means of an act:

(i) &##160; .60; ...

ip>(i60&#1160 &#1f sucatureo be likely ta endanger human life...”

FACTS

The deceased ised is alls alleged to have died in the following circumss.&#1n the of May, 1995 between 6:00 am and 11:00 am the prisoneisoner, thr, the dece deceased and the deceased’s son were at the Laloki River. Thre there so that the dece deceased could be treated using traditional treatment known to the prisoner. The State case is the trnttment consisted of a mixture obtained from a bark of a tree and water. That that the mixture repaprepared by the prisone60; The deceased drank two cups of the mixture while his son drank one cup. After takr taking the mi bure both vomited blood ane taken to the Port Moresby General Hospital where the dece deceased died. The deceased’s son ras treated and he recovere>

You have pleaded guilty to a very serious charge namelnamely, murder pursuant to s. 300 (1) (b) (ii) of the Criminal Code. cause death of the deceasedeased by preparing a mixture (bae (bark and water) which was of such a nature as to be likely to endanger life. You are only 20 years ol Iand I wonder how much you know about traditional medl medicine. Or whether the mixture you gave the deceased and his son were to cure any sickness or condition.

On the evidence the deceased and his son were not illll. On the 20th of May, 1995 at 2:00 pm you and the deceased wogettogether at a at a volleyball game which ended at 4:00 pm. on you all went to a yout youth night and then slept at the deceased’s house. Next morni the 21st of Mayf May, you with the deceasedeased and his son to the Laloki River.

I have no doubt in my mind tind that both were perfectly well. A rive prepared the mixturixture and gave it to them and immd immediately they were affected. The dec and his son vomiteomited bafter drinking the mixture.

The following findings are noted in the Post-Mortem Repo Report:

“SUMMARY OF SIGNIFICABNORMAL FINDINGS AT EXAMINATION

· &160; ; n&##160; S60; Slightlyghtly cachectic.

· &##160;;ɘ< B60; Bilateral massive al ural adhesions and minimal congestion of both lungs.

<83;&##160;;  macho- 200 mls of sero serosangunous material with few floatsloats (x30 (x30)? Pl)? Plant fibre.

The cause(s) of death wae: Brpneum&#822>

On your allocutus you told the Court that you gave them them the mthe mixturixture at e at their request. There is no suchence from from the deceased’s wife. The deceased refused ll hell her where you were going that morning. You ald not explo her what what was going on between you and the deceased.

On sentence, I e, I take the following factors into accoup>

(b)p>(b) Thut yo aareungyoung man -man - 20 years;

(c) &#160t yoa are a first offe offender;

(d) ҈ Custodystody period of onr year, 2s; an

(60; ҈ stances nces surrouurrounding the death of the deceased.

Alth>Although ough no vino violencolence was used and death was not caused by anyons, ay yoeived the dehe deceased and his son makes it serious.&ous. #160; I dothink they were aere aware that they were drinking something that could cause their deaths. I fhat the mixture you preu prepared was highly harmful as to be likely to endanger human life

My conclusion is that ahat a term of imprisonment is appropriate. As to what is an appropriate sentence I refer to the case of The State v Laura (No 2) [1988-89] PNGLR 98, a decision of the former Chief Justice of this Court, where His Honour sets out guids which may be taken in sentencing for murder. Quotinuoting fro headnote note at page 98, where the Court held:

“(1) Because murder is a more serious homicide than manslaughter sentences for murder should be relevantly highen those of manslaughter.

(2) ;ټ The fole followingowing guidelines may be taken as appropriate in sentencing for murder:

(a) pl a of auilty where therethere are no special aggravating factors, a sentence of six years;

(b) ـ&#1 sentesentence ofce of less than six years may be imposed only where there are special mitigating factors such as the youthss or advanced age of the accused;

(c) &#160a pl a plea of noof noof not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.”

On the basis of the above authorit constheseors to be spbe specialecial miti mitigating factors for the purpose of sentencing this prisoner:

(a) 9 s 1rs ead whln the offenoffence was committed, he is now 20 years;

(b) ټ The cire circumstances undin deatthe ded - olence or weapons were used, but administering of p of poisonoisonous oous or harr harmful mful substance not apparent on the face ofand(c)& &160; The effect o sthe suhetaubstaubstance on individual victims as their bodies react to it.

The sentence of the Court is four (4) years imprisonment in hard labour. I deduct oneyear two (2) w(2) weeks as period spent in custody. You are to the balance ofce of two (2) years, eleven (11) months and two(2) weeks imprisonment in hard labour.

Lawyer for the : Public Prosecutor

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Lawyer for the accused: Public Solicitor