State v Wadbag [2016] PGNC 217; N6410 (22 February 2016)

N6410
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1138 OF 2013

THE STATE

V

DAI WADBAG

Daru: Koeget, AJ
2016 :16^th and 22^nd February.

CRIMINAL LAW: -Indictable offence – unlawful killing under Section 302 of Criminal Code Act – accused pleaded guilty – Maximum sentence – discretionary sentencing powers of Code under Section 19 of Criminal Code Act.

INTRODUCTION
The accused pleaded guilty to unlawful killing of one, Ngal Gigu, a national female on 18^th October, 2012 between Iblamen settlement and Kuiwang village, South Fly District in Papua New Guinea. The charged is brought pursuant section 302 of the criminal code Act chapter 262.

FACTS

1. On 17^th October, 2012, the accused and the deceased’s wife left Kuiwang village with two infant children and walked on foot to Iblamen settlement to plant yams in their garden. The accused and the deceased spent the night with their children at that camp. In the early hours of 18^th October, 2012 there was an argument between the accused and the deceased. The argument started when the deceased accused him of having sexual relationship with her elder daughter from her previous marriage to the accused’s elder brother. The daughter was pregnant at that time.
   
2. The argument between the accused and the deceased became tense then accused resorted to assaulting the deceased. He initially used bare hands and later he assaulted the deceased with a piece of wood. The deceased fell unconscious and motionless on the ground. He dragged the deceased to the nearby creek and attempted to revive her by pouring water over her body but she did not regain conscious at all.
   
3. The accused then left the body of the deceased near the creek at Iblamen camp, picked up the infant children and walked to Kuiwang village, where community leaders and relatives of the deceased were told of the death of the deceased. The Kuiwang villagers went to Iblamen camp and carried the body of the deceased to the village. She was eventually buried at Kuiwang village the following day.
   

HELD

1. The court must consider the circumstances in which the offender committed the offence resulting in death of the deceased, and the deceased living behind children of tender ages without them knowing where their mother has gone, will she ever return to see them in the future. The offenders’ actions denied the children the love of their mother.
   
2. No one can replace a lost life not even compensatory measure in cash or kind or expression of remorse can resurrect a life. The sentencing guide lines in the case of Manu Kovi vs The State (2005) PGS(34)i SC 789( 31^st May 2005) applied.
   

Cases cited:
Rex Lialu vs The State [1990] PNGLR, 487
Manu Kovi vs The State [2005] PGS, 34} i sc 789[31st May 2005]

Counsels:
D. Mark,for the State
B Popeu , for the Accused
22^nd February, 2016

ARRAIGNMENT

1. KOEGET, AJ The accused pleaded guilty to the charge after the arraignment.
   

ISSUE:

2. The only issue for the court to determine what is the appropriate sentence to impose upon the prisoner.
   

LAW

3. Section 302. Manslaughterer
   

“A person who unlawfully kills another under such circumstances as not to constitute wilful, murder or infanticide is guilty of manslaughter.

Penalty:

Subject to section 19, imprisonment for life’’

PERSONAL PARTICULARS

4. The prisoner attended Bitum primary school and completed grade eight (8) in 2004 then returned home to live with his parents. He is a first time offender. He left behind nine (9) children in the custody and care, of his old parents. His father is now blind and mother is very old so both cannot provide adequate means for the upbringing of their grand children.
   

But these are the facts he ought to have considered before proceeding to assault the deceased. He ought to have considered the probable consequence of his actions should death occur.

5. He is 32 years of age and was a subsistence gardener at the time he committed the offence. He was taken into custody on 18^th October, 2012 and has been remained in custody till date of sentence.
   

MITIGATING FACTORS

6. The prisoner admitted to the people at Kuiwang village that he caused the death of the deceased. He cooperated well with the police during the investigation into the death of the deceased and pleaded guilty in Court before me. These actions saved the Court’s valuable time.
   
7. He apologise to the deceased’s immediate and extended family members at Kuiwang and the neighbouring villages and to the court. I accept the apology as genuine because he readily admitted in court that what he did to his wife was wrong and against law of the land.
   
8. He was in custody for 3 years 18 months and 3 days. He pleaded for mercy of court.
   

AGGRAVATING FACTORS

9. A life was lost and no one can replace a lost life not even compensatory measure in cash and kind or expression of remorse can resurrect a life. The maximum sentence for unlawful killing is life imprisonment so it is considered a very serious crime. Any other lesser sentence is only at the discretion of the court under Section 19 of the Criminal Code Act.
   
10. I have considered everything the prisoner told me in his allocates, in particular, I considered the circumstances in which he committed the offence resulting in the nine children having no mother to care for them. The two infant children aged between six months and four years respectively (at the death of their mother) will attain adulthood without their mother. Both will not know when their mother left them and where she had gone. Neither of them will ever know if their mother will return to see them grow up in the future. The prisoner has denied them the love of their mother.
    

SENTENCE

11. In sentencing for unlawful killing (manslaughter), court must have careful regard to the circumstances of the death and the way in which death was caused. In Papua New Guinea the Supreme Court in the case of Rex Lialu -v- the State [1990] PNGLR, 487 cited, adopted and applied the principle from the English case of R -v- Philips (1985)7 Cr App R(s), 325. Lord Justice Watkin in delivering judgment of the court said at page 237:
    

“The offence of Manslaughter is, unhappily, one which is committed quite frequently in large variety of circumstances. The court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused in coming to conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about........”

12. I agree with the principle cited above and it is applicable to this case. The Supreme Court in recent time, has provided guidelines in sentences for Wilful Murder, Murder and Manslaughter (Unlawful Killing) in the case of Manu Kovi -v- The State (2005) PGSC 34;SC789 (31^st May, 2005). Both counsels for the State and prisoner submitted that in accordance with the suggested tariffs in the case of Manu Kovi -v- The State (Supra), court should consider imposing a custodial sentence within category 2, imprisonment between 13 - 16 years because no weapon was used in the commission of the offence and it was not pre-planned. A stick was used to hit the deceased before she fell unconscious and laid motionless on the ground. I accept the submissions in view of the Supreme Court decision in the case of Manu Kovi –v- The State and accordingly apply the suggested tariffs in this case.
    
13. The Probation officer has provided Pre-Sentence Report and Means Assessment Report to the Court to assist in deciding what is the appropriate sentence to impose on the prisoner. There is no prior conviction because the offence for which this prisoner was charged and convicted was committed in time after he was remanded in custody for unlawful killing. I considered all matters in the Pre-Sentence Report and Means Assessment Report and I apply the principles cited earlier in the Supreme Court decision.
    
14. I consider that the sentence of 13 years imprisonment is appropriate. In my view the prisoner will have the chance to rehabilitate in prison and after released to the community in Kuiwang village, he will be a reformed person.

ORDER

15. The order of the court therefore is, that DAI WADBAG, is convicted of the offence of unlawful killing (manslaughter) and sentenced to be imprisoned for 13 years with hard labour. The pre custodial periods of 3 years, 4 months and 4 days are deducted and the balance of 9 years, 8 months 5 days is to be served at Daru Correctional Institution Services.

________________________________________________________________
Public Prosecutor : Lawyer for State
Public Solicitor : Lawyer of Accused