State v Moses [2018] PGNC 539; N7653 (22 November 2018)

N7653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1306 OF 2018

THE STATE

–v-

DAVID MOSES

Kerema: Koeget, J
2018:15^th, 22^nd November.

CRIMINAL LAW - Indictable offence – Manslaughter section 302 of the Criminal Code Act chapter 262 – accused pleaded guilty – admissions contained in answers to questions in record of interview – accused acted in protection of his properties stolen by thieves like deceased – Mitigating factors outweigh aggravating factors so imposition of deterrent sentence not warranted in this case exercise of court’s discretionary powers under section 19 of the Criminal Code Act.

Cases Cited

Nil

Counsel:

Public Prosecutor, for the State
Public Solicitor, for the Prisoner

22^nd November, 2018

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Manslaughter pursuant to Section 302 of the Criminal Code Act chapter 262.

FACT

2. On the afternoon of 17^th December 2017 between five o’clock and six o’clock the accused David Moses went to pick betel nuts and mustard in his garden. It was slightly dark when he arrived at the garden. He saw a farmset bag and a ten kilogram bag in the betel nut garden.

3. As he looked around in the garden, he saw a figure moving away among the young betel nut trees and so he swung a bush knife at the figure. The bush knife struck the deceased on the skull and when he shouted in agony, the accused drop the bush knife and returned to his house located at Epo, Central Kerema in the Gulf Province.

4. On return to Epo, the accused told another person about the incident in the betel nut garden.

5. On the morning of 18^th December, 2017 the body of the deceased James Karapa was retrieved from the betel nut and mustard garden of the accused. On the even date, the accused surrendered to police at the Kerema Police station and so he was arrested and charged with the offence.

6. The medical report attributed death to the wound inflicted by the severe penetrating brain injury caused by the bush knife used by the accused.

ARRAIGNMENT

7. The accused pleaded guilty to the charge when arraigned of these set of facts. There are admissions in the answers to the questions in the record of interview so the guilty plea was confirmed.

ISSUE

8. The issue for the court to determine is what is the appropriate sentence the court should impose upon the prisoner?

PERSONAL PARTICULARS

9. The prisoner is 38 years of age and is a divorcee. His wife deserted him and so he resides with his five young children at Epo. His parents are deceased and his elder sisters reside in the village at Kaintiba.

10. He has no formal education so lived a life as a subsistence gardener.

AGGRAVATING FACTORS

11. A bush knife was used to inflict the injury on the head. The injury was severe and death was instantaneous and a life is lost and cannot be resurrected.

12. Such offence is prevalent in the country so courts have imposed severe sentences on such offenders.

MITIGATING FACTORS

13. The prisoner is a first time offender. He voluntarily surrendered to the police and made admission in the record of interview so cooperated well with the police during investigation into the incident.

14. He pleaded guilty to the charge in court and save valuable time of court.

15. He found the deceased stealing his betel nuts and mustards and attacked and inflicted the injury from which he died. He attacked the deceased to protect his properties from thieves like the deceased.

LAW

“Section 302. Manslaughter

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

Penalty: subject to section 19, imprisonment for life.”

SENTENCE

16. This was a vicious attack on the deceased with a bush knife. The injury to the head was severe and death was instantaneous.

17. The deceased in this case was stealing betel nuts and mustards from the prisoner’s garden and the prisoner caught him “red handed” on 17^th of December 2017. The prisoner stated on allocatus that previously people were stealing betel nuts and mustards from his garden and he did not find them.

18. But this was just one instance where deceased was caught stealing from his garden: “He wanted to cut the leg to cripple the deceased so he will not walk and steal anymore from the garden”.

19. His actions are in protection of his properties being stolen by thieves like the deceased.

20. It was slightly dark and did not aim at any particular part of the deceased’s body when he swung the bush knife.

21. He swung the bush knife once and when the deceased shouted in agony, he recognised the voice and knew it was James Karapa. So he dropped the bush knife and walked to the house.

22. The mitigating factors in this case far outweigh the aggravating factors so in my view an imposition of long deterrent sentence or maximum sentence is not warranted. A short, sharp sentence will be fair and just in the given circumstances of the case. The prisoner is sentenced to be imprisoned for 4 years in hard labour. The pre-trial custodial period of 10 months 3 weeks 3 days is deducted.

23. The balance of 3 years, 1 month, 1 week and 4 days are to be served at Bomana Corrective Institution Service.
____________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused