State v Keyana [2016] PGNC 401; N6725 (6 November 2016)

N6725

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1800 of 2016

THE STATE

V

DEWADE KEYANA

Daru: Koeget, AJ
2016: 6^th November

CRIMINAL LAW- Indictable offence – Unlawful killing under section 302 of the Criminal Code Act chapter 262 – Accused pleaded guilty to the charge – Exercise of Court’s discretionary powers under section 19 of the Code.

Cases Cited:
Papua New Guinea Cases

Rex Lialu v The State [1990] PNGLR 487
Manu Kovi v The State (2005) SC 789

Overseas Cases

R –v-Philips (1985) Cr App R(s), 325

Counsel:

D. Mark, for the State
W. Dickson, for the Accused

6^th November, 2016

1. KOEGET AJ: INTRODUCTION: The accused Dewade Keyana of Mirawa village in the South Fly District of the Western Province is charged that on 1^st of March 2016 at Mirawa village in Papua New Guinea killed Peter Wabadala. The charge is brought pursuant to section 302 of Criminal Code Act.

FACTS:

2. It is alleged that on 1^st of March 2016 at about 5 o’clock in the afternoon the accused Dewade Keyana was at Mirawa village in the South Fly District of the Western Province.

3. The deceased Peter Wabadala committed adultery with his wife on many occasions. The accused confronted the deceased armed with a bush knife and struck him on the left leg around the ankle. The wound was deep and there was heavy flow of blood from that wound. The deceased died from heavy loss of blood at Nakaku Health Centre.

ARRAIGNMENT

4. The accused pleaded guilty to the charge and was convicted accordingly.

ISSUE

5. The issue for the Court to determine is what is the appropriate sentence to impose upon the deceased.

LAW

Section 302. Manslaughter

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

Penalty: Subject to section 19 imprisonment for life.”

6. Such offence is considered serious by the legislator so a severe penalty is provided under the relevant section of the Criminal Code.

7. The Supreme Court in Papua New Guinea in the case of Rex Lialu –v- The State [1990] PNGLR 487 stated that in sentences for manslaughter (unlawful killing), court must have careful regard to the circumstances of the death and the way in which death was caused.

8. The Supreme Court adopted and applied the principle from the English cases R –v-Philips (1985) Cr App R(s), 325 Lord Justice Watkin in delivering judgement 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, 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....”

9. The principle cited above is relevant to the case before me and so I apply it accordingly.

10. Both counsels suggested in their respective submissions that a sentence within the range of 8-12 years would be an appropriate punishment as set out in the case of Manu Kovi –v- The State (2005) SC 789 (31^st May, 2005).

11. In this case the mitigating factors in my view out weight the aggravating factors so a fair and just sentence must be imposed when exercising court’s discretionary sentencing powers under section 19 of the Criminal Code Act. The deceased created the situation that had the prisoner’s patience run thin and the prisoner resorted to violence and inflicted the injury from which the deceased died.

ALLOCATUS

“I apologise to the deceased’s family. I know it was a foolish thing to cause the death of the deceased. I apologise to the Court and to my family for causing embarrassment to them.”

PERSONAL PARTICULARS

12. The accused is 53 years of age and is a subsistence gardener. He is married with two children aged 3 and 6 years respectively. The children are residing with their mother in the village.

13. The prisoner’s parents are deceased and so as his older brothers. The prisoner’s older sister is married and resides with her family at Ali village Balimo, in the Middle Fly District. He attended Ali primary school and completed grade 5 then returned home to the village to live as subsistence gardener.

AGGRAVATING FACTORS

14. The prisoner used a bush knife, although a tool for gardening but now regarded as a dangerous weapon to inflict deep wound on the left leg of the deceased. The deceased bled to death as there are no hospitals nearby to attend to him.

MITIGATING FACTORS

15. The prisoner reported to the village court officials in his village about the persistent adulterous relationship the deceased had with his wife. He was advised by the village court magistrate to leave the village and go and live in a neighbouring village. The prisoner migrated to Ali village and the deceased followed and continuously enticed the prisoner’s wife and commit adultery with her.

16. The prisoner then, left Ali village with his wife and children and returned to Mirawa village. When he was in Mirawa village, the deceased followed and continued to entice the prisoner’s wife and commit adultery with her.

17. So the prisoner became very angry and struck the deceased’s left leg with bush knife intending to cripple him but the deceased bled to death due to the severe wound.

18. The prisoner did not tolerate the behaviour of the deceased anymore, in particular enticing his wife to commit adultery. The prisoner’s patience ran thin so he resorted to violence and inflicted the injury and unfortunately the deceased died.

19. The prisoner has been in custody awaiting trial for his case for three months.

20. The State alleges no prior convictions so he is a first time offender. He apologised to the family of the deceased, the villagers and to the court. He pleaded guilty to the offence and cooperated well with the police thus, saving valuable time of this Honourable Court.

SENTENCE

21. The prisoner is sentenced to 8 years in hard labour. The pre-trial custodial period of 3 months is deducted. He is to serve the balance of the sentence at Daru Corrective Institute Services.

ORDER

22. The balance of 7 years 9 months is to be served at Daru Corrective Institute Services.

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