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State v Kauwa [1994] PGLawRp 652; [1994] PNGLR 503 (24 October 1994)

PNG Law Reports 1994

[1994] PNGLR 503 - State v Billy Kauwa�

[1994] PNGLR 503

N1277

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BILLY KAUWA

Waigani

Injia AJ

24 October 1994

CRIMINAL LAW - Sentence - Manslaughter - Drunken brawl - Mitigating factors - Subsequent payback killing of the accused's father and brother - Compensation - Rejection of compensation by victim's relatives.

Facts

The accused and the deceased had a fight while drinking with a group of about 30 other men. The deceased was told to leave the scene, which he did. However, he returned some 15 minutes later, and the accused struck him on his head with a piece of timber. He was unconcious and taken to the Port Moresby General Hospital, where he died a few days later. The deceased's death led to a tribal fight between the relatives of the two men in which the prisoner's father and brother were killed by way of payback. The prisoner asked the Court for leniency because of, inter alia, the loss of his father and brother. He also offered substantial compensation.

Held

The prisoner's loss of his father and brother in a tribal fight following the killing is not a mitigating factor. Other mitigation was considered. The sentence was for five years imprisonment.

Cases Cited

Apo v The State [1988] PNGLR 182.

Lialu v The State [1990] PNGLR 487.

Counsel

C Sambua, for the State.

D Sakumai, for the accused.

24 October 1994

INJIA AJ:� On 18 August 1994, I found the prisoner guilty and convicted him of unlawfully killing one Pakaitakali Mendokane at Morata No 3 on 6 November 1993. This offence is called manslaughter and it is found in s 302 of the Criminal Code (the Code). The maximum punishment is life imprisonment, subject of course to s 19 of the Code, which gives the Court discretion to impose a lesser term depending on the particular circumstances of each case.

On 18 August 1994, I received submissions from both lawyers on sentence and adjourned the matter to 26 September 1994 to enable the probation officers for NCD and Wabag to furnish me with a means assessment report on the matter of compensation as required by the Criminal Law (Compensation) Act 1991. On 26 September 1994, the report was not ready and so I adjourned the matter to 29 September 1994, on which date the report was furnished. I received further submissions on that date and adjourned the matter to today for sentence. I have read the report and will revert to it later.

The circumstances of the killing were set out in my written judgment which I delivered on 18 August 1994. In brief, the prisoner and the deceased both avail from Kompiam, Enga Province. They were living in Port Moresby at the material time. On the early hours of 6 November 1993, both men were among a group of about 30 very drunk men from Kompiam who converged at Joseph Lakipin's house to listen to their visiting village councillor, one Pius Gabriel Sapol, speak about events back at home. The deceased and the prisoner were also very drunk, the prisoner having continuously drunk commencing on the afternoon of 5 November 1993 at his place of work, after work. Whilst the men were assembled at Joseph's house, a fight broke out between the deceased and the prisoner in which the deceased punched the prisoner on his mouth which caused the prisoner's mouth to bleed and rendered him unconscious. The prisoner got up and tried to retaliate but he was separated from the deceased and the prisoner was led away to Joseph's house whilst the deceased was told to leave Joseph's house, which he did. However, some 15 minutes later, the deceased returned to Joseph's house. His advance towards Joseph's house was blocked by one Leo Lewala who banged together the heads of the deceased and Jacob Tangula who had stepped in to assist the deceased. Upon seeing the return of the deceased, the prisoner who was standing on the verandah of Joseph's house sprang to the deceased and struck him on his head with a piece of stick or timber which caused the deceased to fall down unconscious with his head bleeding. Joseph's wife Agnes then poured water on him and he was taken to the Port Moresby General Hospital where he died on 15 November 1993. He died from head injuries, namely, "subdual haemorrhage in brain damage due to blunt injury to the head" caused by the head injury inflicted by the prisoner with the piece of stick or timber as described above.

The prisoner is a single man, aged about 22 years old. He comes from Kapal village, Kompiam, in the Enga Province. He attended Eki Vaki Community School at Hohola in the National Capital District. Thereafter, he attended Kila Kila High School and completed Grade 9 in 1984. He left school and found a job as a chef at Tabubil where he worked from 1986-1988. Sometime later he returned to Port Moresby. In 1993, he was employed as a Security Supervisor by Timakali Security Service and stationed at Papindo Supermarket at Gerehu until he was arrested for this offence. He was earning a salary of K98 per fortnight. I am told that his employer has temporarily laid him off work pending the outcome of this case. The prisoner has no prior convictions. He has now been in custody for a total of 11 months waiting for his trial.

The deceased was also a young man aged 22 years old at the time of his death. He was of average built and a normal person. There is no other information regarding the personal and other background of the deceased.

In considering the appropriate sentence, I take into account several factors, both in favour of and against the prisoner which are set out in the following paragraphs to the extent mentioned herein.

1. HIS YOUTH

He is a young man and single. Youth is always a mitigating factor. However, the weight to be attached to this factor is substantially reduced by the fact that his age falls well above the usual teen age group and that he was employed in a supervisory capacity which means independence of character and maturity.

2. HIS PREVIOUS GOOD PERSONAL BACKGROUND AND CHARACTER

He comes from a good family background and was of previous good character. This is a mitigating factor.

3. NO PRIOR CONVICTIONS

This is his first offence.

4. GUILTY PLEA

He pleaded not guilty. He gets no credit which would usually be available to one who pleads guilty. I should say that the fact that he pleaded not guilty is not an aggravating factor.

5. CO-OPERATION WITH THE POLICE

On the whole he co-operated with police in answering all their questions. He also surrendered himself to police at Waigani when the deceased's relatives were looking for him. These are mitigating factors. But the weight to be attached to these factors are limited to a large extent because he denied the commission of the offence whilst admitting that he fought with the deceased on the first fight. Also, he surrendered on 15 November 1993, some nine days after the incident. His surrender was prompted by the fact that the deceased's relatives were looking for him.

6. REMORSE

He gets no credit for expression of remorse because he maintained his innocence even after I found him guilty. The fact that on allocutus he said he was sorry for his own family is not genuine remorse for what he did. I do point out that failure to express genuine remorse is not an aggravating factor.

7. VOLUNTARY INTOXICATION

Voluntary intoxication is not a mitigating factor. As the Supreme Court said in Apo v The State [1988] PNGLR 182, per Kapi DCJ at p 183:

"... Anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not be taken as a mitigating factor."

The prisoner gets no credit for the fact that he was drunk and behaved in the manner he did. Nor is it an aggravating factor, because he did not purposefully get drunk to kill the deceased.

8. KILLING OF A CLOSE RELATIVE

At the time of the offence, the prisoner and the deceased were living in Port Moresby away from their home district which is Kompiam. They knew each other and were gathered at Joseph's house to hear their Councillor. Although there is no evidence as to how closely related they are, at least they had a common Local Councillor in Pius Pakol and a common friend in Joseph Lakipin. There was also evidence at the trial that just before the first fight the deceased and the prisoner were seated next to each other on the same bench on the lawn and were conversing with each other.

The significance of killing a close relative for purposes of mitigating punishment was set out by Kapi DCJ in Apo v The State, supra, at p 183 in the following terms:

"Whether a person killed is a relative or an enemy has special significance in Papua New Guinea. The notion of payback is still practiced in many parts of the Highlands. The significance is that where a person other than a relative is killed, the victim's relatives would pay back by seeking to kill a member of the offender's family. This brings upon the killer and his line the risk of tribal war, death or destruction of property. There are also high compensation demands which would involve the whole clan.

Compared to this is the killing of a relative which can rarely result in such tribal warfare and animosity. In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant."

The situation with the present prisoner is that despite the pre-existing friendly relations between the prisoner and the deceased in Port Moresby, the killing sparked off a tribal fight which resulted in the prisoner's father and his only other brother being killed. And so at the outset, I infer that the deceased and the prisoner were not that closely related in Kompiam after all. Therefore, the prisoner will get no credit for the fact that he killed a friend in Port Moresby but who would otherwise be a tribal enemy in the Kompiam area. Nevertheless, I will give him little benefit of mitigation for the fact that he killed the deceased whom he regarded as a friend in Port Moresby at the time of the killing.

9. LOSS OF FATHER AND BROTHER IN PAYBACK KILLING

The prisoner asked me to take into account the loss of his father and brother in the tribal fight in Kompiam which followed the killing in Port Moresby. In my view, those who took the law into their own hands should be dealt with separately by the Court. The Court's sentence will not be affected by such killings. The notion of payback killings is still practised throughout the Highlands. A person from Kompiam or any other parts of the Highlands who voluntarily drinks with a sizeable number of people from his own area in a night-long drinking spree and gets himself drunk, exposes himself to the likely consequences of his action, namely, a risk of a fight taking place between them or an accident in which someone will get injured or even get killed. Many, if not all, night-long drinking parties of people not only from the Highlands but all over PNG end up in a nasty incident of some sort which brings to end what started out to be a friendly gathering. A fight is the usual manner in which a drinking party ends. People get injured or even get killed in these kinds of parties. A person who chooses to participate in this kind of activity ought to know such likely consequences of his conduct. For a person coming from the Highlands, he ought to know that if he involves himself in a night-long drinking spree with people who are not his very close friends or relatives and kills someone, a tribal conflict or warfare in his village will follow. He ought to know that he is thereby exposing the innocent members of his tribe or clan in his village, his own family, his parents or brothers and sisters to the risk of tribal warfare. Many people get killed and properties destroyed in these tribal fights. Therefore he must avoid engaging in these drinking parties involving continuous consumption of alcohol with other people especially from his own area. I think in the particular case before me, the loss of his brother and father were the direct consequences of the tribal fight which followed the killing of the deceased. Therefore, their death is not a mitigating factor.

10. COMPENSATION AS A MITIGATING FACTOR

Payment of customary compensation by the prisoner and his relatives to the deceased's relatives is a mitigating factor. Following the death of the deceased, a gathering was arranged in Port Moresby where contributions in kind and money were received from sympathisers which were used to look after the mourners and to meet the cost of transporting the body home. According to the pre-sentence report, a total of K6,000 was raised. On allocutus, the prisoner said he himself contributed K800 plus K600 worth of foodstuff and two pigs. There is no evidence as to the amount contributed by the prisoner's immediate or close relatives. In view of the fact that it was a public gathering, it would be unsafe to accord the prisoner the benefit of mitigation for the full K6,000. I will, therefore, give him the benefit of mitigation for the payments he himself made.

11. CIRCUMSTANCES OF DEATH

In Lialu v The State [1990] PNGLR 487, the Supreme Court said that in sentencing for manslaughter cases, the Court must have careful regard to the circumstances of death and the way in which death was caused. The Court set out various factors which I refer to hereunder.

(A) THE NATURE AND FREQUENCY OF THE ATTACK OR ASSAULT

The prisoner hit the deceased hard at least once on his head, with a piece of stick or timber which caused the deceased to fall down instantly and lie in a state of comma with blood flowing from his head.

(B) WHETHER THE INJURY WHICH CAUSED THE DEATH AROSE DIRECTLY FROM AN ATTACK OR ASSAULT OR WAS CAUSED BY, FOR EXAMPLE, FALLING ON AN OBJECT

I found on the evidence that even though Leo banged the heads of Jacob and the deceased just before the prisoner attacked the deceased, that "banging of the heads" was not sufficient to cause the nature of the head injury sustained by the deceased. There was also no evidence that the deceased fell down and his head hit some blunt object on the ground. I found that the head injury was as a direct result of the prisoner's attack on the deceased with a piece of timber or stick.

(C) WHETHER THE INJURY WAS CAUSED BY THE PERSON OR A WEAPON

An instrument in the form of a piece of stick or timber was used. If he used a more lethal weapon, his conduct would be regarded more seriously.

(D) WHETHER THERE WAS DELIBERATE INTENTION TO HARM

There is no doubt that the prisoner intended to harm the deceased.

(E) WHETHER THERE WAS PROVOCATION IN A NON-LEGAL SENSE

There was provocation in relation to the first fight. In relation to the second fight, one could say that the return of the deceased to Joseph's house minutes later provoked the prisoner who received a "bloody mouth" at the hands of the deceased some 15 minutes earlier. The deceased could have done better to leave Joseph's house after he was separated from the prisoner whom he gave a "bloody mouth".

However, the degree of provocation in relation to the second fight here was not immediate or direct because the deceased did not do or say anything against the prisoner. He was entitled to return and stay at Joseph's house now that it was some 15 minutes since the first fight and things ought to have cooled down. Upon his return, the deceased was tussling with Leo, not the prisoner. It was the prisoner who sprang to where the deceased was and hit him.

(F) WHETHER THE DECEASED HAD A THIN SKULL

There is no evidence on this.

To the above matters, I would add the following.

(G) THE DEGREE OF PRE-MEDITATION

The prisoner did not plan the attack for a long time. He acted on the spur of the moment upon seeing the return of the deceased to Joseph's house. He also picked up the piece of stick or timber in the heat of moment.

As to the circumstances of the killing, this case is distinguishable from the Lialu's case, supra, in that the prisoner punched the deceased once at his back which caused him to fall backwards and fall on the ground. At the trial, there was some uncertainty over which part of the back the prisoner punched the deceased. It was clear that he died from head injury sustained in the assault but not clear as to whether the head injury was caused directly by the punch or as a result of hitting his head on the ground when he fell down. On appeal, Kapi DCJ accepted the version most favourable to the appellant in finding that the injury was caused directly as a result of his falling backwards onto the ground. In that case both men were drunk and the argument was over some suggestive remarks made by the deceased to the prisoner's wife in the presence of the prisoner. The Supreme Court reduced a sentence of 6 1/2 years to 4 1/2 years.

In the instant case, the prisoner hit the deceased deliberately with a piece of stick or timber with sufficient force, at least once, to cause him to fall down and render him unconscious and bleed from his head. This case is, therefore much more serious than Lialu's case, the cause of the death here being more of an "accidental" type.

The instant case is somewhat similar to the facts in Apo's case, supra, but distinguishable on some aspects. In that case, the appellant who had been drinking at another place went to the house where the deceased was, to play cards. The victim who was trying to sleep felt disturbed by the appellant and an argument developed which eventuated in a fight between them. They fought and the victim knocked down the appellant. The appellant retreated and returned with a knife and stabbed the victim. The victim died two days later at the hospital. The Supreme Court by majority decision confirmed the sentence of six years. In that case, the fact that prisoner pleaded guilty to manslaughter and the fact that he killed a close relative was taken into account in mitigation of punishment. The Supreme Court rejected the submission that the prisoner's state of intoxication was a mitigating factor.

The instant case is not as serious as the killing in Apo's case in that the prisoner had been punched by the deceased some 15 minutes earlier, that they were both very drunk, that the deceased returned to the house after he was separated from the prisoner and told to go away, that the prisoner used a piece of stick or timber which he picked up on the spur of the moment, he had little time to plan the attack, and that the deceased died some 9 days later at the hospital. But then, these factors could be offset by the fact that the prisoner in the instant case was found guilty and that he did not kill a close relative.

I should also add that this killing is a bad case of manslaughter killing. A blunt instrument in the form of a stick or timber was deliberately landed directly on the deceased's head with sufficient force which caused the deceased to fall down instantly and lie in a state of comma. In view of the fact that the victim's earlier attack on the prisoner was a punch to his mouth and the fact that the deceased and Jacob on one hand and Leo on the other hand were tussling without using any weapons or instruments, the prisoner's attack was disproportionate to the deceased's actions and uncalled for.

I have gone to length to set out and discuss most, if not all, of the factors relevant to sentence in this case. In considering the appropriate sentence, the whole of the factors, must be looked at. As Kapi, DCJ said in Apo v The State, supra, at p 183:

"The Court cannot take individual consideration and allocate a period. I adopt what I said in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299 at 303. The whole of the circumstances have to be looked at when considering whether the sentence of six years is the appropriate sentence."

What then is the aggregate effect of all the factors in this case? I have before me a young man who having been brought up and educated in Port Moresby has lived most of his life away from his home village which is located at Kompiam. He has been employed on two occasions since leaving school at Grade 9 rather pre-maturely. He has a good record of character. He was employed at the time of the offence and held a responsible position as a Security Supervisor with Timakali Security Services. There is no evidence of his past bad drinking habits, if any, and he has no prior convictions. On the day before the incident and the day of the incident, he chose to drink and party with friends from his Kompiam area in a festive mood on the occasion of the arrival of their common Village Councillor. The atmosphere was friendly when it all started. Then came the occasion for nasty incidents. The prisoner was punched apparently without any provocation on his part. He could not retaliate. Fifteen minutes later he did in a calculated manner but within a very short space of time upon seeing his attacker. This incident appears to be the only dark spot in his good life. There is nothing wrong in choosing to drink with his friends and partying all afternoon after work, all night long and in the early hours of the next morning. As young as he is, he just did not know how to control his drinking habits and his emotions and avoid trouble. But then he was not alone. Everyone else including the victim in that group was in the same boat. They all ought to have known the likely consequences of continuous drinking - of a fight breaking out, of someone being killed or injured, of an accident and so on.

But then the relatives of the victim do not appreciate the dilemma the prisoner is in now. They have refused to be compensated by the prisoner. Instead they insist on his being jailed. Their position is understandable. They have lost a young man of their family or clan.

On the other hand the prisoner asked me to be lenient to him and place him on suspended sentence or probation. And accepting his past history and the particular situation he was placed in, his request is quite legitimate.

In the final analysis, I am left with two competing interests - the interest of the prisoner and the interest of the community which to a certain extent is manifested by the demands of the deceased's relatives.

In my view, the ends of justice would be best met by imposing a custodial sentence, which should act as a deterrent to future offenders. The sentence should also give him the opportunity to change his lifestyle insofar as concerns his drinking habits, his choice of friends he chooses to associate with, and his payback mentality. Finally, the sentence should act as a retribution and punishment for taking away another young man's life in this manner.

Having regard to the circumstances of the killings in Apo v The State and Lialu v The State, I consider this instant case falls a little short of Apo's case.

In all the circumstances, I consider that an appropriate sentence is one of five years imprisonment in hard labour. Of this, he has already spent a total of 11 months in custody, which I deduct from the five years sentence. He will serve the remaining period of four years and one month.

As to the question of whether a compensation order is to be made, I accept the recommendation of the Probation Officer that it would not be appropriate. I endorse the two reasons he gives:

N2>1.������ The prisoner and his relatives only want to pay compensation if the prisoner is not sent to jail, whilst the deceased's relatives do not want compensation at all but, rather, want the prisoner to be sent to jail.

N2>2.������ The amount or value of compensation in money and pigs far exceeds the statutory limit of K5,000. The prisoner and his relatives have offered to pay up to K2,000 and 150 pigs. The value of a big size pig in Enga is K800 - K1,000. Therefore, the total value of compensation offered is over K100,000 in cash.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.