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) reads:

“(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) ...

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

(i) ...

(ii) of such a nature as to be likely to endanger human life...”

FACTS

The deceased is alleged to have died in the following circumstances. On the 25th of May, 1995 between 6:00 am and 11:00 am the prisoner, the deceased and the deceased’s son were at the Laloki River. They were there so that the deceased could be treated using traditional treatment known to the prisoner. The State case is that the treatment consisted of a mixture obtained from a bark of a tree and water. That the mixture was prepared by the prisoner. The deceased drank two cups of the mixture while his son drank one cup. After taking the mixture both vomited blood and were taken to the Port Moresby General Hospital where the deceased died. The deceased’s son was treated and he recovered.

You have pleaded guilty to a very serious charge namely, murder pursuant to s. 300 (1) (b) (ii) of the Criminal Code. You caused the death of the deceased by preparing a mixture (bark and water) which was of such a nature as to be likely to endanger human life. You are only 20 years old and I wonder how much you know about traditional 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 ill at all. On the 20th of May, 1995 at 2:00 pm you and the deceased were together at a volleyball game which ended at 4:00 pm. Later on you all went to a youth night and then slept at the deceased’s house. Next morning on the 21st of May, 1995 you went with the deceased and his son to the Laloki River.

I have no doubt in my mind that both were perfectly well. At the river you prepared the mixture and gave it to them and immediately they were affected. The deceased and his son vomited blood after drinking the mixture.

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

“SUMMARY OF SIGNIFICANT, ABNORMAL FINDINGS AT EXAMINATION

· Slightly cachectic.

· Bilateral massive pleural adhesions and minimal congestion of both lungs.

· Stomach - 200 mls of serosangunous material with few floats (x30)? Plant fibre.

The cause(s) of death was/were: Bronchopneumonia.”

On your allocutus you told the Court that you gave them the mixture at their request. There is no such evidence from the deceased’s wife. The deceased refused to tell her where you were going that morning. You also did not explain to her what was going on between you and the deceased.

On sentence, I take the following factors into account:

(a) Your plea of guilty;

(b) That you are a young man - 20 years;

(c) That you are a first offender;

(d) Custody period of one year, 2 weeks; and

(e) The circumstances surrounding the death of the deceased.

Although no violence was used and death was not caused by any weapons, the way you deceived the deceased and his son makes it serious. I do not think they were aware that they were drinking something that could cause their deaths. I find that the mixture you prepared was highly harmful as to be likely to endanger human life.

My conclusion is that 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 guidelines which may be taken in sentencing for murder. Quoting from the headnote at page 98, where the Court held:

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

(2) The following guidelines may be taken as appropriate in sentencing for murder:

(a) On a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) A sentence of less than six years may be imposed only where there are special mitigating factors such as the youthfulness or very advanced age of the accused;

(c) On a plea of 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 authorities I consider these factors to be special mitigating factors for the purpose of sentencing this prisoner:

(a) Was 19 years old when the offence was committed, he is now 20 years;

(b) The circumstances surrounding the death of the deceased - no violence or weapons were used, but administering of poisonous or harmful substance not apparent on the face of it; and

(c) The effect of the substance on individual victims as their bodies react to it.

The sentence of the Court is four (4) years imprisonment in hard labour. I deduct one (1) year two (2) weeks as period spent in custody. You are to serve the balance of two (2) years, eleven (11) months and two(2) weeks imprisonment in hard labour.

Lawyer for the State: Public Prosecutor

Lawyer for the accused: Public Solicitor