State v Koiengu [2022] PGNC 379; N9922 (15 September 2022)

N9922

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 644 OF 2019

THE STATE

V

ALFRED KOIENGU

Wewak: Miviri J
2022: 13^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Retaliation Over Sexual Penetration of Daughter – Deliberate Stabbing – Appropriate Sentence – Plea – Strong Mitigating Facts – First Offender – Rule of Law – Sentence Lower End Murder – 8 Years IHL.

Facts
Prisoner cut the deceased immediately after being told that his 7 years old daughter was raped by the deceased.

Held
Plea to Murder
Killing over rape of seven-year-old daughter.
Provocation with S 303 CCA.
Conviction on Manslaughter.
Natural father.
8 years IHL

Cases Cited:
Moses, Regina v [1965-66] PNGLR 180
Queen v Sem [1964] PGSC 34
Aihi v The State (No 3) [1982] PNGLR 92
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
Kovi v The State [ 2005] PGSC 34; SC789
Warome v State [2020] PGSC 73; SC1991
Kumbamong v State [2008] PGSC 51; SC1017
State v Hagei [2005] PGNC 60; N2913
The State v Tardrew [1986] PNGLR 91

Counsel:

F.K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

15^th September, 2022

1. MIVIRI J: This is the sentence upon Alfred Koiengu of Parom, Boiken, Wewak, East Sepik Province who murdered one Garry Simbiwane.
   
2. He has been charged pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (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) if the offender intended to do grievous bodily harm to the person killed or to some other person;

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

(i) done in the prosecution of an unlawful purpose; and

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

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.

3. The specific section invoked by the State is section 300 (1) (a) of the Code set out above. He intended to cause grievous bodily harm to the deceased who succumbed as a result of the knife wounds that he inflicted upon the deceased.
   
4. The relevant facts leading on arraignment were that on the 2^nd of December 2018 the Accused was at Parom Village, Boiken, Wewak. He was attending the graduation ceremony of the local elementary school. This was about 2.30pm to 3.00pm when he was informed that his seven-year-old daughter had been sexually assaulted by Gari Simbiwane, now deceased. On hearing the Accused went to his house and changed his clothes took two bush knives accompanied by his brother in-law and went looking for the deceased. He found him at the Hulumbe River where he approached him and attacked him with the bush knives. He chopped him twice, first on the left shoulder and then on the forearm. And the deceased fell as a result and he left him on the riverbank and went away. The deceased succumbed to the injuries from bleeding that resulted. Accused took his daughter and came to Wewak and reported the matter to the Police. That his daughter was raped by the deceased and he had stabbed the deceased as a result.
   
5. He pleaded guilty to Murder section 300 (1) (a) Criminal Code Act. Effectively he had intended to cause grievous bodily harm to the deceased who died as a result of the actions that he authored. But upon reading the depositions the verdict of Manslaughter was returned pursuant to section 302 of the Code. Because by the operation of section 303 Killing on Provocation, he had acted out of provocation that the deceased had committed rape upon his seven (7) year old daughter. He was informed immediately after that fact he changed his clothes armed himself with bush knives and went after the deceased and did what he did to him killing him. His facts depict not the scene observed in Moses, Regina v [1965-66] PNGLR 180 or Queen v Sem [1964] PGSC 34 (19 February 1964), where there was serious of events preceding and time lapse in between where the Prisoner was able to rationalize and reason. There was no time for the passion to cool off and for reason to settle in so that it was not anger and revenge. That is not the case here by the facts illuminated and confirmed independently to drive the passion of the Prisoner to act as he did.
   
6. Because he reacted immediately as soon as he was informed of that fact that the deceased had raped his 7-year-old daughter. He is the natural father and he reacted in passion to do what he did. There was no history of events leading up to the climax in the killing of the deceased as with the cases set out above. It was an immediate reaction to the fact that his daughter was being raped by the deceased. He did not stand to reason, or think out what he was to do, it was immediately, primarily in view of the fact that he was her natural father. She was a child of tender age and he ought to save her.
   
7. This is established by the evidence of Kerry Wesley Hulukawa statement dated the 07^th January 2019 where he says, “After dropping of the mothers we turned the vehicle (dump truck) at the main road, Julius Koiengu’s area and we were about to drove back to Yawasoro to drop off bubu John and in the middle of the road, we meet a little girl named Meloni, who is about seven (7) years old. We saw her crying and was running on the road, so we stop the vehicle and asked her: why she was crying and she replied and told us that; Gary Hulukawa Sembiwane did raped her.
   
8. Hearing that the driver, turn the vehicle and we went towards the playing field to look for Meloni’s father, Alfred Koiengu and inform him about what has happen to his daughter. Alfred Koiengu heard that and he ran to his house and came back with a meter long bush knife in his hands, accompanied by some men from the village namely; 1. Julius Koiengu, wearing a long Yaka trousers with black round neck “T” Shirt and was armed with a grass knife. 2. Carlmax Waranigi was also holding a grass knife and wore short blue jean trousers with a green armless “T” Shirt. 3. Kingsley Albert Kinu, was armed with a meter long iron and wore a long blue jean trousers and we went and looked for the late brother Garry Hulukawa Sembiwane and saw him swimming at Hawain River.”
   
9. And when he found him there both he and the deceased fought and he cut the deceased on his left side shoulder. And then left him there to die after inflicting the injuries. These are the details that are recounted by another witnesses also brother of the deceased, one Francis Sembiwane. It is clear that the prisoner is not reacting out of anger or reasoned attack but is acting on the spur of the moment before there is time to quell his passion. And this is clear when he squarely denies the assertion that there were others involved in the killing. He has taken responsibility for the death of the deceased because of the deceased actions to his 7-year-old daughter. She is a child of tender years he is a grown adult and the actions of the prisoner are of passion rather than revenge. And these drew the verdict of Manslaughter pursuant to section 302 of the Code.
   
10. It is in the following terms: “A person who unlawfully kills another under such circumstance as not to constitute wilful murder, murder, or infanticide is guilty of manslaughter.
    

Penalty: Subject to Section 19, imprisonment for life.”

11. Therefore, the maximum sentence due the prisoner for the conviction is the maximum of life imprisonment. But that is on account of the worst offence of Manslaughter: Aihi v The State (No 3) [1982] PNGLR 92. Here prisoner was overwhelmed by passion over the rape that was committed by the deceased upon his daughter. In that respect it is not the worst offence of its kind. He was a law-abiding citizen all alone his life until the commission of the offence. He is married with five children of which he has a daughter doing grade 12 at the Yarapos Girls Secondary School in Wewak. And a second boy in grade 11 at Brandi Secondary School also in Wewak, third girl in grade 5 at Hawain Primary School and fourth boy in elementary school with the last girl at home with the mother. This is evidence that he is a responsible parent and has worked to ensure that his children are educated well to sustain in life. It reflects his character as the head of the family given that he is a grade three primary school leaver who is illiterate, he cannot read nor write. And is of the Catholic Christian Faith.
    
12. These details are set out in the presentence and means assessment reports compiled on the application made, orders granted by this Court in sentence of the prisoner. Included is the fact that K10, 000.00 was paid as compensation for the death of the deceased by the Prisoner confirmed and verified by the elder brother of the deceased one Francis Sawarue a few days after the death of the deceased. That is a token that the prisoner has taken responsibility for the offence and wants to see peace and the relationship maintained. And the presentence report sets that both parties are related and are now on level terms seeing each other daily and sharing food. The prisoner has by his conduct lived out the Gospel that He who wrongs must settle before the law takes its course. And he has voiced further in the presentence report to pay a further K15, 000.00 by the first week of November 2022. In this respect the family of the deceased have demanded K40,000.00 of which prisoner has settled the K 10,000.00. leaving K 30, 000.00. remaining. Primarily this is a matter in the discretion of the parties and not of the court to impose upon. As the penalty prescribed for the offence is maximum of imprisonment for life years. But it is relevant to take into account the action that the prisoner has taken to settle the matter. It is a strong mitigating factor in favour of the prisoner in the determination of an appropriate sentence due him. That is all there is in view of the recent supreme Court decision of Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020) which affirms that compensation is by the Criminal Law Compensation Act 1991 section 5 setting that it is K5000 and not beyond. There also the sentence of 1 year was suspended on the condition of the payment of that sum. He was convicted of murder. Here the conviction is for Manslaughter which is the lowest offence of homicide. And given the facts and circumstances here is applicable.
    
13. And within Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) the facts and circumstances of the present case fall under category 1 of Manslaughter cases drawing the range of between 8 to 12 years imprisonment. And here defence has urged that suspension of part of the sentence is in order given the guilty plea and the circumstances set out above. Which has not been strenuously opposed by the State who concede also on the basis of the reasoning set out above.
    
14. On the converse, Garry Simbiwane may have committed a very serious offence against the daughter of the prisoner. There is a process of the Criminal Justice system that he is answerable to. But for the human passion that elevated the action of the prisoner. But the fundamental remains that respect for the rule of Law must always be there and prevail. As without it there would not be order in society. It is trite that life must be protected and resort always to the law not into one’s private domain. In this regard the sanction envisaged by parliament must be heeded. Here therefore the sentence bearing in mind the aggregate of all set out upon the Prisoner is 8 years imprisonment in hard Labour for the crime of Manslaughter committed on the 2^nd of December 2018 at Parom Village, Boiken, Wewak.
    
15. In his favour is the fact that he has not waited for the law to catch him. He has reported the matter immediately after to Police in Wewak because the statement of the Arresting Officer Gabriel Miwone details that the allegation was formally handed to him on the 04^th December 2018 two days after the offence. Record of interview was conducted on the 02^nd April 2019. But he was taken into custody on 04^th December 2018. He has admitted the offence as he did to the Police in his record of interview. That what he did was in immediate response to what the deceased did to his daughter who was then 07 years old, a child of tender years.
    
16. Given the intent to make peace and restore relations between his family and that of the deceased three years of the 8 years imposed will be suspended on the condition that K5000.00 compensation is paid to the brother of the deceased one Francis Sawarue including family of the deceased. In so ordering I take into account that this is not a wife or husband killing situation as depicted by Warome v State [2020] PGSC 73; SC1991 (27 August 2020) but provocation as observed there is also set out by the facts and circumstances here. Not necessarily in that sense but here the 7-year-old daughter was violated hence the reaction of the Natural father given. And suspension of sentence considering will not be out of the ordinary, considering that the Supreme Court in this case and others has emphasised, as in Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008).
    
17. Here considering State v Hagei [2005] PGNC 60; N2913 (21 September 2005) the facts depict an extenuating circumstance that will be reflected in the sentence that is passed upon the prisoner. There the death penalty was intended but life imposed because the prisoner was taken to the relatives of the deceased girl who speared the prisoner through the chest but he became alive when his body was wrapped and about to be placed in the Buka morgue. Life imprisonment was imposed. I consider the facts here as extenuating and a sentence out of the ordinary is in order warranted.
    
18. Because by the operation of section 19 of the Code suspension of sentence can eventuate if it will promote general deterrence or rehabilitation of the offender. The prisoner’s antecedents show he has a character that was unblemished until this day triggered by the conduct of the deceased. He will be sentenced but not to fact that it will deny repayment or restitution here, he has taken the initiative to pay upfront K10, 000.00. It reflects well that he be given an opportunity to further pay in accordance with the Criminal Law Compensation Act 1991 of K 5000.00. And not the demand made by the relatives of the deceased bearing in mind that his conduct set his demise not without. So, what is called for by law will be paid not more or less bearing in mind, Aquila (supra). It is also considered that imprisonment in total without any suspension would be excessive considering what the deceased did to the prisoner’s 7-year-old daughter. And in this regard the views by The State v Tardrew [1986] PNGLR 91 is relevant and applicable given the facts here, because suspension is not an act in leniency, but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation.
    
19. Accordingly, the aggregate is that for the crime of Manslaughter pursuant to section 302 of the Code the prisoner Alfred Koiengu of Parom, Boiken, Wewak, East Sepik Province is sentenced to 8 years imprisonment in hard labour.
    
20. It is further ordered that 3 years of that will be suspended on a 3 year Good Behaviour Bond upon payment of K 5000.00 to the brother of the deceased one Francis Sawarue including family of the deceased.
    
21. The suspension of the 3 years will be effective upon production of official receipt or evidence verifying the payment of the K 5000.00. to the recipients ordered.
    
22. Prisoner will serve the remaining 5 years IHL in jail. Any time on remand will be deducted forthwith he will serve the balance in jail.
    
23. His Bail moneys are refunded forthwith.
    

Ordered Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant